Akehurst Chapters 1-3

1 Introduction
The problem of defining international law 1 See, for example, Cicero, De officiis,
lib. III, 17, 69.
2 For the meaning of private
The term ‘international law’ was first used by Jeremy Bentham in 1780 international law see Chapter 4 below,
71ñ4.
in his Introduction to the Principles of Morals and Legislation. Since 3 See Chapter 2 below, 16ñ17.
about 1840, in the English and Romance languages it has replaced the 4 See Chapter 6 below, 91ñ2.
5 See Chapters 17, 256ñ7 and 18, 262ñ
older terminology ‘law of nations’ or ‘droit de gens’ which can be traced 9 below.
back to the Roman concept of ius gentium and the writings of Cicero.1 6 See Chapter 5 below, 76.
In the German, Dutch, Scandinavian and Slavic languages the older 26 below.
terminology is still in use (‘Völkerrecht’, ‘Volkenrecht’, etc.). 8 See Chapters 2, 22 and 6, 92ñ6
below.
Until the period between the two World Wars, writers found no 9 See Chapters 6, 105ñ8 and 19, 338ñ
difficulty in defining (public) international law,2 in one formulation or 41 below.
10 Restatement (Third), para. 101, 22ñ
another, as the law that governs the relations between states amongst 4. The previous Restatement only
each other. The prevailing positivist doctrine3 of the nineteenth century referred to ëthose rules of law applicable
to a state or international organization
and first half of the twentieth century held that only states could be that cannot be modified unilaterally by
subjects of international law, in the sense of enjoying international legal ití, ibid., at 24. The concept of ëforeign
relations law of the United Statesí is
personality4 and being capable of possessing international rights and broader than ëinternational law as it
duties, including the right to bring international claims.5 applies to the United Statesí. It includes
ëdomestic law that has substantial
However, this did not quite reflect reality even at that time. The Holy significance for the foreign relations of
See,6 although not a state, was recognized to have international legal the United States or has other
substantial international
personality, and so, for certain purposes, were insurgents7 and some consequences.í, ibid., para. 1, at 7.
forerunners of modern international organizations.8 Since the inter-war
period, the matter has become more complicated due to both the
expansion of the scope of international law into new areas and the
emergence of actors other than states on the international plane, such as
intergovernmental organizations established by states, non-governmental
organizations created by private individuals, transnational companies,
individuals and groups, including minorities and indigenous peoples.9
Some of these new actors have also acquired international legal
personality or, at least, certain rights under international law, even if
only granted by treaties concluded between states.
This development is reflected, for example, in the change of the
definition in the Restatement (Third) by the American Law Institute of
the Foreign Relations Law of the United States, according to which
international law
consists of rules and principles of general application dealing

with the conduct of states and of international organizations and
with their relations Inter se, as well as with some of their relations
with persons, whether natural or juridical.10
Some recent textbooks refrain from any attempt to define international

2 INTRODUCTION
11 See, for example, I.Brownlie,

Principles of Public International
law and enter directly into the discussion of its ‘sources’.11 On a similar
Law, 4th edn 1990. On the sources basis, Sir Robert Jennings, the distinguished writer and former President of
of international law see Chapter 3
below, 33ñ62.
the International Court of Justice, has even called into question the general
12 R.Y.Jennings, International Law, need for an objective definition of international law with regard to actually
EPIL II (1995), 1159ñ78, at 1165.
13 See M.Koskenniemi, The Future
using and applying it.12 At any rate, in the exposition of the subject in a
of Statehood, Harvard ILJ 32 (1991), textbook, emphasis must be placed at the outset on the circumstance that,
397; C.Schreuer, The Waning of the
Sovereign State: Towards a New
although increasing global interdependence and the emergence of new players
Paradigm for International Law?, on the international level have put into question the role of the state in
EJIL 4 (1993), 447ñ71; L.A.Khan,
The Extinction of Nation-States. A
international affairs,13 international law is still predominantly made and
World Without Borders, 1996 and implemented by states. International organizations are to a large extent
Chapter 2 below, 17ñ18 on the
doctrine of state sovereignty.
dependent upon these territorial entities and the willingness of their
14 See Chapter 21 below, 369ñ73. governments to support them. Only states can be members of the United
15 Article 35, UN Charter, text in
Brownlie BDIL, 1. See Chapter 22
Nations,14 only states are entitled to call upon the UN Security Council if
below, 385ñ430. there is a threat to international peace and security,15 only states may appear
16 Article 34(1), Statute of the ICJ,
ibid., 438. See Chapter 18 below,
in contentious proceedings before the International Court of Justice,16 and
281ñ93. only states can present a claim on behalf of a national who has been injured
17 See Chapter 17 below, 256ñ7.
by another state,17 if there is no treaty to the contrary. The individual has
19 See Chapter 3 below, 36ñ48. no individual rights in this respect under customary international law and
20 See O.Schindler, Regional
International Law, EPIL 7 (1984),
is dependent on the political discretion of the home state as to whether or
404ñ9 and Chapters 2, 14ñ15 and not to present the claim. In other words, the international legal system is
3, 41 below.
21 See Chapter 3 below, 44.
still primarily geared towards the international community of states,
22 See Chapter 2 below, 30ñ2. represented by governments.18
24 See E.McWhinney, United
Nations Law Making: Cultural and
Ideological Relativism and
International Law Making for an Era
General and regional international law
of Transition, 1984; R.-J.Dupuy
(ed.), The Future of International
Law in a Multicultural World, 1984;
‘General international law’ refers to rules and principles that are applicable to
A.Cassese, International Law in a a large number of states, on the basis of either customary international law or
Divided World, 1986.
multilateral treaties.19 If they become binding upon all states, they are often
referred to as ‘universal international law’. But there is also regional international
law, which applies only to certain groups of states, such as, for example, certain
rules on diplomatic asylum recognized only by South American states,20 or the
law of the European Union. Moreover, the term ‘particular international law’
is used to denote rules which are binding upon two or a few states only. Mere
usage, in the sense of widespread practice observed between states without any
sense of legal obligation, is often called international comity.21
Regionalism tends to undermine the universality of international law,
but it is an important existing feature of the international system.22 The
universality of international law was at one stage challenged by the
Communist theory of international law and at a later stage by the numerous
new states emerging from the process of decolonization after the Second
World War.23 These challenges in principle no longer appear. But obviously
the community of more than 185 states in existence today is rather
heterogeneous in terms of military, political and economic power, territorial
size and population, political structure, and cultural and ideological
orientation. This diversity also affects the interpretation and operation of
international law to a considerable extent.24 Almost all of the existing states,
however, are members of the United Nations and of regional organizations
of various kinds and agree on certain fundamental principles of international
CHARACTERISTICS OF INTERNATIONAL LAW 3
25 Text in Brownlie BDIL, 36. See
law as laid down in the United Nations Charter and the Friendly Relations Chapter 2 below, 32.
Declaration of 1970.25 26 For a recent study see H.Spruyt, The
Sovereign State and Its Competitors,
1995, See also Chapter 2 below, 10,
17ñ18.
27 See B.Broms, The Doctrine of
Characteristics of international law Equality of States as Applied in
International Organizations, 1959; R.P.
Anand, Sovereign Equality of States in
International law has a number of special characteristics making it International Law, RdC 197 (1986), 13ñ
completely different from highly developed national legal systems which 228; G.Jaenicke, States, Equal
Treatment and Non-Discrimination,
are connected with the existence of the modern state and its apparatus. EPIL 10 (1987), 456ñ65; J.M.Castro
The modern state which emerged in Europe after the fourteenth century Rial, States, Sovereign Equality, ibid.,
477ñ81.
centralized the use of force by making it a state monopoly, developing a 28 See Chapters 3, 52ñ4 and 21, 377ñ9
standing army and a more or less efficient bureaucracy.26 It increasingly below.
engaged in economic and social regulation, and created a sophisticated 30 See Chapters 18, 292ñ3, 21, 373ñ7
system of legal institutions, principles and rules regulating society. and 22, 390ñ1, 425ñ9 below.
The Western concept of law, with its national and philosophical variations, 72 below.
became a central instrument for the organization and development of both 32 See Chapter 18 below, 273ñ305.
33 B.-O.Bryde, Self-Help, EPIL 4
state and civil society. In a systematic sense, this is reflected in the distinction (1982), 215ñ17.
between the three functions, typically entrusted to central organs, of law-
making (legislature), law determination (courts and tribunals), and law
enforcement (administration, police, army). Domestic law is addressed to a
large number of governmental bodies and private individuals and groups of
individuals. International law, on the other hand, is primarily concerned
with the legal regulation of the international intercourse of states which are
organized as territorial entities, are limited in number and consider
themselves, in spite of the obvious factual differences in reality, in formal
terms as ‘sovereign’ and ‘equal’.27 Thus, international law is a horizontal
legal system, lacking a supreme authority, the centralization of the use of
force, and a differentiation of the three basic functions of law-making, law
determination, and law enforcement typically entrusted to central organs.
The United Nations General Assembly is not a world legislature,28 the
International Court of Justice in The Hague can operate only on the basis
of the consent of states to its jurisdiction,29 and the law-enforcement capacity
of the United Nations Security Council is both legally and politically limited.30
Nevertheless, a state which violates an international obligation is
responsible for the wrongful act towards the injured state, or, under
certain circumstances, to the international community as a whole.31 The
injured state can raise an international claim which it may pursue on the
basis of special remedies, if available, or by resorting to third-party
mediation or conciliation, arbitration or judicial proceedings.32 In the
end, however, the role of self-help by states in cases of a violation of
their rights is predominant in international law, as compared with the
restricted admissibility of self-help of individuals in national legal systems.
If one state commits an illegal act against another state, and refuses to
make reparation or to appear before an international tribunal, there is (or
was until recently) only one sanction available to the injured state: self-
help.33 Self-help exists as a sanction in all legal systems. In earlier primitive
legal systems, most sanctions involved the use of self-help in one form or
another. Even in modern legal systems an individual may defend himself
against assault, retake property which has been stolen from him, evict
4 INTRODUCTION

trespassers from his land and terminate a contract if the other party has
36 See Chapter 22 below, 387ñ415. broken a major term of that contract. But in modern societies self-help has
38 See Chapters 21, 373ñ9 and 22,
become the exception rather than the rule, whereas in international law it
385ñ416, 425ñ30 below. has remained the rule.
At one time states might even go to war to enforce their legal rights.
However, this is no longer lawful, with certain exceptions such as self-defence
against armed attack. 34 The remaining forms of self-help are
countermeasures, such as retorsion and reprisals.35
Retorsion is a lawful act which is designed to injure the wrongdoing
state —for example, cutting off economic aid (this is lawful because there is
no legal obligation to provide economic aid, apart from under special treaty
provisions).
Reprisals are acts which would normally be illegal but which are rendered
legal by a prior illegal act committed by the other state. For instance, if
state A expropriates property belonging to state B’s citizens without
compensation, state B can retaliate by doing the same to the property of
state A’s citizens. Reprisals must be proportionate to the original wrong;
for instance, state B could not expropriate property worth several times the
value of the property which its citizens had lost; still less would it be entitled
to kill or imprison state A’s citizens.
One disadvantage of retorsion and reprisals is that the state imposing
these measures may injure itself as much as the state against which they are
directed; this is particularly so when one state cuts off trade with another
state. A recent example has been the reluctance of the United States to use
trade sanctions to enforce its criticism of human rights practices in China,
in view of the huge Chinese market opportunities for American companies.
A more serious disadvantage of self-help is that it works effectively only if
the injured state is in some way more powerful or more determined than
the wrongdoing state.
Not surprisingly, therefore, there has been a recent tendency for sanctions
to be imposed by large groups of states, working through international
organizations such as the United Nations.36 But the United Nations Security
Council can impose sanctions only in limited circumstances, and in the past
was often paralysed by the power of veto possessed by each of its five
permanent members. The United Nations General Assembly is not subject to
the veto, but its resolutions are usually not legally binding (although they are
an institutionalized form of public opinion and can be instruments of political
pressure).37 Both the Security Council and the General Assembly, being political
rather than judicial bodies, base their decisions on political considerations
and sometimes pay little attention to the legal rights and wrongs of a dispute.38
International organizations with more specialized functions may exercise
a more effective control over their members, especially if, like the
International Monetary Fund, they provide essential services.39 A state which
was excluded from membership of the Fund would be unable to borrow
gold and foreign currency from the Fund to meet a balance of payments
crisis. And regional organizations may exercise an even stricter discipline
over their members; for instance, the Court of Justice of the European Union
has compulsory jurisdiction over member states which are accused of
breaking the rules of Community law.40
INTERNATIONAL LAW AS ëLAWí 5
40 Articles 169 and 170, EC Treaty.

However, it must be admitted that sanctions work less effectively in 41 See the report by C.Jochnick/R.
international law than in national law. States are few in number and Normand/S.Zaidi, Unsanctioned
SufferingóA Human Rights
unequal in strength, and there are always one or two states which are so Assessment of United Nations
strong that other states are usually too weak or too timid or too disunited Sanctions on Iraq, Centre for Social and
Economic Rights, 1996; R.Provost,
to impose sanctions against them. But this does not mean that Starvation as a Weapon: Legal
international law as a whole works less effectively than national law— Implications of the United Nations Food
Blockade Against Iraq and Kuwait,
only that it works in a different way. Colum. JTL 30 (1992), 577ñ639; E.J.
In international law there is considered to be collective responsibility Garmise, The Iraqi Claims Process and
the Ghost of Versailles, NYULR 67
of the whole community of a state which has committed an internationally (1992), 840ñ78; R.Normand/C.
wrongful act. Thus, the civilian population of Iraq, in spite of some Jochnick, The Legitimation of Violence:
A Critical Analysis of the Gulf War,
precautions taken, was in effect made to suffer under the sanctions adopted Harvard ILJ35 (1994), 387ñ416; B.
by the international community in response to the invasion and occupation Graefrath, Iraqi Reparations and the
Security Council, ZaˆRV 55 (1995), 1ñ
of Kuwait by the Iraqi Government in the Second Gulf War.41 International 68. See also Chapter 22 below, 396ñ9.
law has, therefore, often been described as a ‘primitive legal system’. But 42 See Chapter 4 below, 63ñ71.
43 See Harris CMIL, 1ñ17.
this is a rather misleading characterization. It is true that the impact of 44 On the problem of the enforcement
power and politics is much more immediately recognizable and directly of international obligations, see the
Colloquium in Commemoration of the
relevant in international law than in national law. It is also true that 600th Anniversary of the University of
international law, due to the lack of central institutions, is heavily dependent Heidelberg, 22 and 23 September 1986,
ZaˆRV 47 (1987), 1 et seq. (with
on national legal systems (often called ‘municipal law’)42 for its contributions by R.Jennings, R.
implementation. There are also other features which explain the Bernhardt, K.Zemanek, K.Doehring, E.
Stein, J.A.Frowein, G.K.A.Ofosu-Amaah,
comparison of the international legal system to the unsophisticated T.Stein, R.Dolzer and S. Rosenne);
institutions, principles and rules of pre-modern societies. However, on the P.van Dijk, Normative Force and
Effectiveness of International Norms,
whole, this characterization fails to distinguish the different nature of GYIL 30 (1987), 9; W.E.Butler (ed.),
international law (as a horizontal, decentralized legal system governing Control Over Compliance with
International Law, 1991; J.Delbr¸ck
primarily the relations between states) and of developed (centralized and (ed.), The Future of International Law
institutionalized) national legal systems. It also does not adequately reflect Enforcement. New Scenarios-New
Law?, 1993; A.P.Rubin, Enforcing the
the relatively high degree of differentiation of international law with regard Rules of International Law, Harvard ILJ
to the areas it now covers, the proliferation of multilateral and bilateral 34 (1993), 149ñ61; J.Delbr¸ck (ed.),
Allocation of Law Enforcement Authority
treaties, the considerable increase since 1945 of the main traditional subjects in the International System, 1994.
of international law and the emergence of new actors on the international 45 H.J.Morgenthau, Politics Among
Nations. The Struggle for Power and
level, in particular the large number of international organizations created Peace, 1948. See also the earlier work
by states for a broad variety of functions. by E.H.Carr, The Twenty Years Crisis
1919ñ1939. An Introduction to the Study
of International Relations, 1940.
46 H.A.Kissinger, Diplomacy, 1994. See
also Chapter 2 below, 32ñ3.
International law as ëlawí
There is an old dispute going back to the early writings of Hobbes and
Pufendorf, reinforced in the nineteenth century by Austin’s influential
legal theory, on the issue whether international law may be properly
called ‘law’.43 The controversy has focused on the relevance of the lack
of sanctions in cases of violation of international norms as compared to
municipal law and it has often confused the question of whether
international law is ‘law’ with the problem of the effectiveness and
enforcement of international law.44 In foreign policy thinking, the
reductionist perception of international law is still prevalent in the ‘realist’
school which emphasizes the role of power and of national interest in
international relations and is connected with names such as
Morgenthau,45 Kennan and is also reflected in the latest book by Henry
Kissinger.46
6 INTRODUCTION
47 R.St.J.Macdonald, Foreign
Policy, Influence of Legal
Certainly, the actual role and capability of international law in governing
Considerations Upon, EPIL II the relations between states must not be exaggerated, in view of the decisive
(1995), 442ñ6; S.A.Watts, The
International Rule of Law, GYIL 36
significance of military, economic, political and ideological factors of power.
(1993), 15ñ45. In fact, the role of international law in international relations has always
48 B.Simma, Reciprocity, EPIL 7
(1984), 400ñ4.
been limited, but it is rarely insignificant.47 Its function in structuring the
49 On the role of Legal Advisers and international system has been enhanced because of increasing global
the impact of international law on
foreign policy decision-making see the
interdependence and the self-interest of states in regulating their intercourse
Symposium in EJIL 2 (1991), 132 et rationally on the basis of reciprocity.48 Therefore, disputes between states
seq. (with contributions by S.M.
Schwebel, G.Guillaume, M.Krafft and
are usually accompanied by—in a given case naturally often conflicting—
A.D.Watts); A.Cassese, The Role of references to international law.
Legal Advisers in Ensuring that
Foreign Policy Conforms to
Foreign ministries do not unnecessarily employ a regular staff of legal
International Legal Standards, Mich. advisors.49 States continuously conclude and implement bilateral and
JIL 14 (1992), 139; B. Mawhinney/
K.Girtel, Fourth Legal Advisersí
international treaties and establish and operate international organizations.
Meeting at UN Headquarters in New More and more compilations of state practice in international law have
York, AJIL 88 (1994), 379ñ82;
M.A.G.FÈlix, Fifth Legal Advisersí
been appearing.50 Serious efforts are being made to codify international
Meeting at UN Headquarters in New law. 51 Modern national constitutions usually contain references to
York, AJIL 89 (1995), 644ñ9.
international law.52 All of this corresponds to the empirical fact that most
51 See Chapter 3 below, 60ñ2. states are careful to observe most obligations of international law most of
53 See L.Henkin, How Nations
the time,53 even in the absence of a compulsory dispute settlement procedure
Behave, 2nd edn 1979. For an and centralized enforcement agency. Spectacular cases of violation of
instructive description of how
governments, courts, international
international law, which attract the attention of the media more than regular
organizations and other bodies conduct, are exceptional and should not be confused with the ordinary
apply international legal norms in
the course of their work see
course of business between states.
R.Higgins, Problems and Process: The old discussion on whether international law is true ‘law’ is therefore
International Law and How We Use
It, 1994.
a moot point. First, it should be noted that the general concept of ‘law’
54 See M.Fromont, Les Grands itself and its relative status in society is subject to quite divergent views
SystËmes de droit contemporains,
1987; K.Zweigert/H.Kˆtz,
throughout the world, as has been shown by the modern discipline of
Introduction to Comparative Law, comparative legal studies.54 It is based on different ideas, methods and
2nd edn 1992; C. Varga,
Comparative Legal Culture, 1992;
traditions, as a consequence of historical and cultural diversity,55 including
International Encyclopedia of the Anglo-Saxon common law tradition in England, the Commonwealth
Comparative Law, Vol. II, Chapter 1:
The Different Conceptions of the
states and the United States, the European continental civil law tradition
Law; J. Kropholler, Comparative based on notions of Roman law, the Marxist conception of law as a product
Law, Function and Methods, EPIL I
(1992), 702ñ7; W.E.Butler,
of class struggle and historical formations of society, the Islamic concept of
Comparative Law and International law with no separation between state, society and religion, and special
Law, ibid., 699ñ702; M. Hilf,
Comparative Law and European
traditions in Asia and in Africa. This diversity is also relevant for proper
Law, ibid., 695ñ9; R.A.Danner/M.-L. understanding of the different national perceptions on the role and
Bernal (eds), Introduction to Foreign
Legal Systems, 1994.
interpretation of international law itself.
55 For an example of the Secondly, as regards international law as ‘law’, the arguments of the critics
differences in the area of
constitutional law in two Western
centred upon the absence of a legislature and, more recently, upon the topic of
federal systems of government see sanctions and compliance without recognizing the historical, structural and
W.J.Josef, The Role of Basic Values
in the Constitutional Hermeneutics
functional differences between legal systems within states and the international
of Germany and the United States, legal system as the necessary starting point of analysis. A horizontal system of
ZaˆRV 56 (1996), 178ñ204. See
further S.P. Sinha, Legal
law operates in a different manner from a centralized one and is based on
Polycentricity and International Law, principles of reciprocity and consensus rather than on command, obedience
1996; P.Legrand, European Legal
Systems Are Not Converging, ICLQ
and enforcement. A system of law designed primarily for the external relations
45 (1996), 52ñ81. of states does not work like any internal legal system of a state. After all, there
is no reason to assume that the international legal system must, or should,
follow the historical models of centralized systems of national law. In effect,
what distinguishes the rules and principles of international law from ‘mere
THE SCOPE OF INTERNATIONAL LAW 7
56 See R.Jennings/A.Watts (eds),
morality’ is that they are accepted in practice as legally binding by states in Oppenheimís International Law, Vol. I,
their intercourse because they are useful to reduce complexity and uncertainty Part 1, 9th edn 1992, 8ñ14; H.Mosler,
International Legal Community, EPIL II
in international relations. While international law is clearly weaker than (1995), 1251ñ5.
municipal law from the viewpoint of independent enforcement, it still 57 M.Lachs, Thoughts on Science,
Technology and World Law, AJIL 86
provides the external relevant terms of legal reference for the conduct of (1992), 673ñ97.
states in their international relations, based on the fact that, in spite of all 58 On the doctrine of sovereignty see
Chapter 2 below, 17ñ18.
differences, they are members of an existing international community.56 59 See Chapters 5, 75ñ90, 7, 109ñ17
and 8, 118ñ29 below.
The scope of international law 62 See Chapter 22 below, 385ñ430.
63 See Chapters 19, 306ñ41 and 20,
342ñ63 below.
The process of change in international law from a system of coordination 64 See Chapter 9 below, 130ñ46.
of the international intercourse of mainly European states in limited areas, 66 See Chapter 16 below, 242ñ3.
such as diplomatic relations and war, to a universal system of cooperation 67 See Chapter 8 below, 123ñ7.
in numerous fields between quite different entities reflects the advances of 84 below.
natural sciences and technology,57 increasing global economic and political 69 See Chapter 15 below, 222ñ40.
interdependence and the need to address problems which can no longer 71 See Chapter 13 below, 198ñ208.
be properly dealt with within a national framework, such as in the fields 72 See Chapter 12 below, 173ñ5, 193ñ5.
of communications, international trade, economics and finance, 74 See Chapter 13 below, 201ñ3.
environment and development, or the massive problem of refugee flows. 75 See Chapter 14 below, 209ñ21.
76 O.Schachter, International Law in
The concept of ‘sovereignty’ of states, although particularly cherished due Theory and Practice, 1991, 1.
to their historical experience by the new states which have emerged from 77 T.M.Franck, Fairness in International
Law and Institutions, 1995, 5.
the process of decolonization since the 1960s, is becoming more and more 78 See L.A.N.M.Barnhoorn/K.C.
antiquated in view of the globalization of the economy and increasing Wellens (eds), Diversity in Secondary
Rules and the Unity of International Law,
interdependence of states.58 1995.
International law now covers vast and complex areas of transnational
concern, including traditional topics, such as the position of states,59 state
succession,60 state responsibility,61 peace and security,62 the laws of war,63
the law of treaties,64 the law of the sea,65 the law of international water-
courses,66 and the conduct of diplomatic relations,67 as well as new topics,
such as international organizations,68 economy and development,69 nuclear
energy,70 air law and outer space activities,71 the use of the resources of the
deep sea,72 the environment,73 communications,74 and, last but not least,
the international protection of human rights.75 This development has
resulted in increasing specialization in both academia and legal professions
in practice. As noted by Oscar Schachter:
It is no longer possible for a ëgeneralistí to cope with the volume

and complexity of the various branches of international law.
Increasingly, the professional international lawyer, whether
practitioner or scholar, is a specialist in a particular branch of
the law and each branch develops its own complicated and often
arcane doctrine.76
This specialization reflects the fact that international law has ‘through
maturity, acquired complexity’,77 but the development also now poses
problems with regard to the unity of the academic subject.78 The literature
on international law has indeed become an immense area of study. While
the total production of books on international law had amounted to about
8 INTRODUCTION
79 J.Schwietzke, Review of:

E.Beyerly, Public International Law.
2,000 titles in 1785, by 1967 it had reached the figure of 80,000 books.
A Guide to Information Sources, Currently some 700 books and 3,000 articles on international law are
ZaˆRV 52 (1992), 1052ñ3.
80 See, for example, D.Wyatt/A.
published annually.79
Dashwood, European Community The present book offers only a first introduction to fundamental elements
Law, 3rd edn 1993; D.A.O.Edward/
R.C. Lane, European Community
and selected areas of international law. Furthermore, European Community
Law, 2nd edn 1995; and the articles law, which, although part of international law, has become a highly
in EPIL II
specialized area,80 is outside the scope of this introduction, except for some
reference to certain essential characteristics to describe the uniqueness of
the ‘supra-national’ European Union as compared with other forms of
international organizations.81
2 History and theory
The origin of international law is a matter of dispute among scholars.1 1 See W.G.Grewe, Epochen der
Some authors start by examining the relations and treaties between Vˆlkerrechtsgeschichte, 1984, 19ñ25;
political entities from ancient times (3000 BC), including pre-classical A.Cassese, International Law in a
Divided World, 1986, 37ñ8; H.Steiger,
antiquity in the Near East, ancient Greece and Persia, and the Romano-
Vˆlkerrecht, in O.Brunner/W.Conze/R.
Hellenistic period.2 The prevailing view in the study of international law
Koselleck (eds), Geschichtliche
is that it emerged in Europe in the period after the Peace of Westphalia Grundbegriffe, Vol. 7, 1992, 97ñ140. For
(1648), which concluded the Thirty Years War. a good collection of documents see
Again we find different opinions in the literature on the proper W.G.Grewe (ed.), Fontes Historiae Iuris
classification of the subsequent development. In his interesting book on the Gentium: Sources Relating to the
epochs of the history of international law, the German diplomat and historian History of International Law, Vol. I:1380
BC-1493 (1985), Vol. II:1493ñ1815
Grewe argues that there were three distinct systems of international law
(1988), Vol. III 1/2:1815ñ1945 (1992).
after the sixteenth century, each of which was characterized by the interests, See also A.Nussbaum, A Concise
ideologies and policies of the power that was predominant in the relevant History of the Law of Nations, 1962;
period: the international legal orders of the Spanish age (1494– 1648), the J.H.W.Verzijl, International Law in
French age (1648–1815) and of the English age (1815–1919)3 (which the Historical Perspective, 11 vols, 1968ñ
Scots and the Welsh, of course, in contrast to Grewe, would prefer to call 1991; P.S.Onuf/N.Onuf, Federal Union,
‘British’).4 The Encyclopedia of Public International Law, edited by Rudolf Modern World, The Law of Nations in an
Age of Revolutions, 1776ñ1814, 1993;
Bernhardt, basically differentiates between the periods from 1648 to 1815,
H.LegohÈrel, Histoire du droit
1815 to the First World War, the inter-war period, and developments since international public, 1996.
the Second World War.5 But it also has separate entries for regional 2 W.Preiser, History of the Law of
developments in Africa, the Far East, the Islamic world, Latin America, and Nations: Ancient Times to 1648, EPIL II
South and South-East Asia,6 to avoid the impression of a Eurocentric (1995), 716ñ49.
approach and to clarify that the development of international rules and 3 Grewe (1984), op. cit., 43. For an
principles was not a European matter only. With regard to Asia, the work excellent analysis of the strategic-
economic reasons for the changes in
of C.H.Alexandrowicz especially has brought many new insights which
the international system see P.Kennedy,
had been lost in the course of European expansion.7 As noted by R.P.Anand, The Rise and Fall of the Great Powers,
it is incorrect Economic Change and Military Conflict
from 1500 to 2000, 1987. See also C.J.
to assume that international law has developed only during the last Barlett, The Global Conflict. The
International Rivalry of the Great
four or five hundred years and only in Europe, or that Christian
Powers, 1880ñ1990, 2nd edn 1994.
civilization has enjoyed a monopoly in regard to prescription of rules 4 On the multinational nature of the
to govern inter-state conduct. As Majid Khadduri points out: ëIn each British unitary state and regionalist
civilization the population tended to develop within itself a community tendencies, see P.Malanczuk, Region
und unitarische Struktur in
of political entitiesóa family of nationsówhose interrelationships
Groﬂbritannien, 1984.
were regulated by a set of customary rules and practices, rather 5 History of the Law of Nations, EPIL II
than being a single nation governed by a single authority and a (1995): S.Verosta, 1648 to 1815, 749ñ
single system of law. Several families of nations existed or coexisted 67; H.-U.Scupin, 1815 to the First World
War, 767ñ93; W.G.Grewe, the First
in areas such as the ancient Near East, Greece and Rome, China,
World War to the Second World War,
Islam and Western Christendom, where at least one distinct 839ñ49; O.Kimminich, Since the
civilization had developed in each of them. Within each civilization Second World War, 849ñ61.
a body of principles and rules developed for regulating the conduct 6 History of the Law of Nationsó
Regional Developments, EPIL II (1995):
of states with one another in peace and warí.8
T.O.Elias, Africa, 793ñ802; S.Miyazaki,
Far East, 802ñ9; A.S.El-Kosheri, Islam,
10 HISTORY AND THEORY
809–18; A.T.Y.Serra, Latin America,

818–24; N.Singh, South and South-
The problem of periodization is well-known in historical studies in general.
East Asia, 824–39. To a large extent the classification of history into periods is arbitrary and
7 C.H.Alexandrowicz, An Introduction
to the History of the Law of Nations in
depends on the criteria applied. Therefore, not too much importance should
the East Indies (16th, 17th and 18th be attached to it. For the purposes of this introduction it suffices to broadly
centuries), 1967; Treaty and
Diplomatic Relations Between
distinguish between the ‘classical’ system of international law (1648–1918)
European and South Asian Powers in and the development of ‘modern’ or ‘new’ international law since the First
the Seventeenth and Eighteenth
Centuries, RdC 123 (1968– I), 121
World War. The classical system was based on the recognition of the modern
et seq. See also J.A.Thomas, History sovereign state as the only subject of international law. This system was
and International Law in Asia: A Time
for Review, in R.St.J.Macdonald (ed.),
composed of numerous sovereign states considered as legally equal and who
Essays in Honour of Wang Tieya, accepted the unlimited right to wage war to enforce claims and protect national
1994, 813–57.
8 R.P.Anand, The Influence of History
interests. In essence it reflected the interaction among European powers and
on the Literature of International Law, the imposition of their international legal order upon the rest of the world in
in R.St.J.Macdonald/D.M.Johnston
(eds), The Structure and Process of
the three centuries following the Peace of Westphalia. From 1919 onwards a
International Law, 1983, 342. fundamental transformation of the international system took place with the
9 See Chapter 22 below, 395–415,
423–30.
attempt to organize the international community and to ban the use of force.
10 See Grewe (1984), op. cit.; The development of modern international law can conveniently be described
Anand, op. cit., 344. On one aspect
see also T. Meron, The Authority to
in the stages from the First World War to the Second World War, including
Make Treaties in the Late Middle the split of the international community in the wake of the Russian Revolution
Ages, AJIL 89 (1995), 1–20.
11 See text below, 17–18.
and the creation of the League of Nations, from the establishment of the
United Nations to decolonization (1945–60), and from the further expansion
of the international community to the end of the Cold War marked by the
dissolution of the Soviet empire (1960–89). The attempt to find a ‘New World
Order’ after the end of the bipolar East-West conflict and the difficulties in
the current phase of the development of international law will be addressed
in the final chapter of this book.9
The formation of European international law
Even during the Middle Ages in Western Europe international law existed.10
But medieval Europe was not very suitable for the development of
international law, because it was not divided into states in the modern sense.
Nowadays we think of states as having undisputed political control over
their own territory, and as being independent of external political control.
Medieval kings were not in this position; internally, they shared power
with their barons, each of whom had a private army; externally, they
acknowledged some sort of allegiance to the Pope and to the Holy Roman
Emperor. When strong centralized states, such as England, Spain, France,
the Netherlands and Sweden began to emerge, claiming unrestricted
sovereignty and no longer submitting to a superior authority, new
international standards evolved, also in relation to non-European powers
like the Ottoman Empire, China and Japan. In the fifteenth and sixteenth
centuries, with the discovery of the sea routes to the Far East and the
rediscovery of America, the sea powers transcended the previous limits of
the political world of Europe. This was followed by the development of the
concept of the sovereign state, first in theory in the sixteenth century by
Bodin,11 then in reality in Spain and, in the transition to the seventeenth
century, also in France.
EUROPEAN INTERNATIONAL LAW AFTER 1648 11
12 See A.-M.de Zayas, Westphalia,

Features of European international law in state Peace of (1648), EPIL 7 (1984), 536ñ9.
practice after 1648 13 Cassese, op. cit., 37.
14 See A.Vagts/D.Vagts, Balance of
Power, EPIL I (1992), 313ñ15.
In state practice, the year 1648 marking the Peace of Westphalia12 is 15 Cited by Verosta, 1648 to 1815, op.
considered as a watershed, at least in Europe where a new political order cit., at 751.
was created, to be replaced only after the defeat of Napoleon by the 17 F.M¸nch, Vienna Congress (1815),
Vienna Congress of 1815. Within Europe the Peace of Westphalia ended EPIL 7 (1984), 522ñ5.
the devastating religious wars between Catholic and Protestant countries
and led to the recognition of Protestant powers and of the fact that the
state is independent of the Church. Three hundred or so political entities,
constituting the remains of the Holy Roman Empire, received the right
to enter into alliances with foreign powers under certain restrictions.
While Germany was divided into a number of comparatively small states,
France, Sweden and the Netherlands were recognized as new big powers,
and Switzerland and the Netherlands were accorded the position of
neutral states. The Empire disintegrated and the decline of the power of
the Church accelerated. As the Italian scholar Cassese notes with regard
to the system set up by the Peace of Westphalia: ‘by the same token it
recorded the birth of an international system based on a plurality of
independent states, recognizing no superior authority over them.’13
The Peace of Westphalia envisaged a collective security system which
obliged parties to defend its provisions against all others. Disputes were to
be referred to a peaceful settlement or a legal adjudication. If no solution
was found on this basis within three years, all other parties were to come to
the assistance of the injured party and allowed to use force. This system was
never put into practice. Power politics and continuously shifting military
alliances among European states overruled it, reflecting the attempt to
maintain a balance of power14 which was the prevailing political principle
in their foreign policy. Friederich Gentz, the collaborator of Metternich,
was later (1806) to define the European balance of power accurately as ‘an
organization of separately existing states of which no single one has the
ability to impair the independence or the basic rights of the others without
meeting with effective resistance and thus having to risk danger for itself’.15
What became known as ‘European public law’ (ius publicum
europaeum; droit public de l’Europe) evolved from the increased diplomatic
and violent intercourse and ever-changing alliances among European
powers on the basis of this principle, which was to be only temporarily
abolished through the conquest of Europe by Napoleon. The French
Revolution of 1789, however, had profoundly challenged the basis of the
existing system by advocating the ideas of freedom and self-determination
of people16 which were meant to be implemented beyond the boundaries
of France, and denied the rights of monarchs to dispose of state territory
and population according to their own discretion.
With the restoration of the old order in Europe at the Vienna Congress
of 1815,17 the second attempt in history to create a collective security
system was somewhat more successful, of course, under its own terms
and historical conditions. The Treaties of Paris created the Holy Alliance
of Christian nations between the monarchies of Austria, Russia and Prussia,
and an anti-revolutionary military alliance between Austria, Prussia,
18 See S.Verosta, Aix-La-Chapelle,

Congress of (1818), EPIL I (1992),
Russia, and England, joined later also by France, to intervene against liberal
94– 5; Verosta, Holy Alliance, EPIL II and nationalist uprising threatening the established order.18
(1995), 861–3.
19 A.Randelzhofer, Great Powers,
The era of cooperation between the Great Powers19 in Europe came to
EPIL II (1995), 618–22. an end with the dispute over the Balkans and their diverging strategic interests
20 T.Schieder, Crimean War, EPIL I
(1992), 867–9.
with regard to the declining Turkish empire. The Crimean War,20 in which
21 Text in 114 CTS 409. See T. Russia was defeated by the alliance of France and Great Britain, supported
Schieder, Paris Peace Treaty
(1856), EPIL 7 (1984), 376–8.
by Piedmont-Sardinia and Turkey, ended with the Paris Peace Treaty of
22 F.Münch, Berlin Congress 1856.21 But the Berlin Congress of 187822 failed to solve the Balkan problems
(1878), EPIL I (1992), 387–9.
23 F.Münch, Balkan Wars (1912/
and the struggle of European powers over the distribution of spoils emerging
1913), EPIL I (1992), 319–21. in the Orient from the disintegration of the Ottoman Empire culminated in
24 On this period see S.Verosta,
Kollektivaktionen der Mächte des
the Balkan Wars of 1912/13,23 bringing the Concert of Europe to its end.24
Europäischen Konzerts (1886–
1914), 1988.
25 J.Fisch, Die europäische Colonization and the relation to non-European powers
Expansion und das Völkerrecht,
1984; F. Ermarcora, Colonies and
Colonial Régime, EPIL I (1992),
One important aspect of the nature of international law in the age of European
662–6. colonization of the world,25 was the relationship of European states, unified
by Christianity, to non-European powers. European expansion abroad in the
interest of trade and commerce was promoted in England, the Netherlands
and France by ruthless profit-making companies, such as the British East
India Company, enjoying privileges which permitted them to perform state
functions in overseas territories. On the inter-state level, at first Europeans
were prepared to admit that non-European states had at least limited rights
under the European system of international law. Non-European states were
also often willing to concede that European states had at least limited rights
under their various non-European systems of international law, and so legal
relations, at the beginning on equal footing, between European and non-
European states became possible. However, these relations did not constitute
a true universal legal system based on common values or institutions, and
states existed separately without any extensive cooperation.
The Europeans recognized the Mogul Empire in India, the Ottoman
Empire, Persia, China, Japan, Burma, Siam (renamed Thailand in 1939)
and Ethiopia as established political entities, but they were aware that these
states did not play a major role in global affairs. By the Paris Peace Treaty
of 1856 Turkey was even expressly admitted (as the first non-Christian
nation) to the Concert of Europe. On the other hand, the Ottoman Empire,
for example, had found it difficult to accept the Christian nations it was
confronted with at its borders in Europe as equal and was insisting on its
superiority. Similarly, China, ‘the empire in the centre of the earth’, preferred
isolation to contact with foreigners, from whom nothing more than tribute
was expected to be due. When a British delegation from King George III
(1760–1821), backed by some handsome new technical gifts, requested in
1793 that China accept a British envoy, the Emperor responded:
As to your entreaty to send one of your nationals to be accredited

to my Celestial Court and to be in control of your country’s trade
with China, this request is contrary to all usage of my dynasty and
cannot possibly be entertained…Our ceremonies and code of laws
differ so completely from your own that, even if your Envoy were
able to acquire the rudiments of our civilization, you could not
26 Emperor Ch’ieng-lung, cited by
possibly transplant our manners and customs to your alien Verosta, 1648 to 1815, op. cit., at 761.
soil…Swaying the wide world, I have but one aim in view, namely, 27 See T.Pakenham, The Scramble for
Africa 1876–1912, 1992.
to maintain a perfect governance and to fulfill the duties of the 28 F.Münch, Berlin West Africa
state…I set no value on objects strange or ingenious, and have Conference (1884/1885), EPIL I (1992),
389–91.
no use for your country’s manufactures.26 29 A.D.Hughes, Hong Kong, EPIL II
(1995), 870–3. See also Harris CMIL,
235. On the agreement to return Hong
Japan, after the ascent to power of the Shoguns, ended the infiltration Kong to China in 1997 see Chapter 10
by Christian missionaries and also cut itself off from all alien contact, below, 158.
30 See Wang Tieya, International Law in
the only exception being Dutch merchants who were permitted to China: Historical and Contemporary
continue business at a trading post at Nagasaki. It took until the Perspectives, RdC 221 (1990–II), 193–
369; W.Morvay, Unequal Treaties, EPIL
nineteenth century for European powers to re-establish trade with China 7 (1984), 514–17. See also Chapters 9,
and Japan with the threat and use of force, invoking, inter alia, the 139–40 and 10, 158 below.
alleged legal principle of ‘freedom of trade’.
In sum, although legally all members of the international community
were equal, in fact, the international system was dominated by the great
powers of Britain, France, Spain, Portugal, the United States, Russia,
Austria, Prussia and the Netherlands. Following the industrial revolution
in Europe after the late eighteenth century, in the nineteenth century the
international community to a large extent had virtually become a
European one on the basis of either conquest or domination. By about
1880 Europeans had subdued most of the non-European states, which
was interpreted in Europe as conclusive proof of the inherent superiority
of the white man, and the international legal system became a white
man’s club, to which non-European states would be admitted only if
they produced evidence that they were ‘civilized’.
In the case of old powers, such as Turkey, Siam (Thailand), China and
Japan, Western states basically relied on the so-called capitulation system,
treaties which were designed to establish lasting privileges for European
trade and commerce in those states and which exempted Europeans from
local jurisdiction. In the case of communities without sufficient central
authority, the method was simply conquest and appropriation. Conquest
and appropriation became particularly apparent in the scramble for
Africa,27 the dividing up of the continent among European powers at the
Berlin West Africa Conference 1884/5, which managed to settle the issues
among colonial powers without provoking another European war.28
Only rarely were nations which had been selected for colonization
able to offer effective resistance, as in the case of Ethiopia in 1896
when Emperor Menelik’s forces humiliated the Italians in the battle
of Adwa. The fate of China offers an illuminating example. After the
Opium War of 1842, fought under the premise of securing the sale of
the drug in China, the Treaty of Nanking compelled China to
surrender the island of Hong Kong to Britain.29 It was followed by
other ‘unequal treaties’ imposing diplomatic relations and increasing
the number of available trading ports.30 The anti-foreign spirit in
China in response to Western intervention in the distracted Empire
resulted in the famous Boxer rebellion. The Boxers, known in China
as ‘Patriotic Harmonious Fists’, found official support for their ‘China
for the Chinese’ objective. But following attacks on Western legations
in Beijing and the murder of Europeans, military intervention led
31 Hamsworth, History of the World,

Vol. 2, 1908, 823.
by Admiral Sir Edward Seymour crushed the rebellion at Lang-Fang in
32 See P.Malanczuk, Monroe June 1900. The Peace Commission of the victors sentenced Princes Tuan
Doctrine, EPIL 7 (1984), 339–44.
33 See text below, 30.
and Fukuo to death, which sentence, because of their imperial rank, was
34 See Serra (1995), op. cit.; converted to penal servitude for life. Prince Chuang and the Presidents of
C.Gray, International Law 1908–
1983, Leg. Stud. 3 (1983), 267–82,
the Board of Censors and Board of Punishment were forced to commit
269 et seq.; J.A.Barberis, Les suicide; three other high officials were beheaded. In addition, a protocol,
Règles spécifiques du droit
international en Amérique Latine,
signed on 7 September 1901, fixed the indemnity to be paid by China at
RdC 235 (1992–IV), 81–227. 450,000,000 taels, on which 4 per cent interest was to be charged until the
capital was paid off at the end of 39 years.31
Japan was somewhat more fortunate because it had decided in the
nineteenth century to adapt its feudal system to the more advanced foreign
technology and organization of the West. This was a reaction to the opening
of the country by the cannons of the American Commodore Perry, the
subsequent conclusion of a trade and ‘friendship’ treaty in 1854, other
treaties with European powers putting their nationals under the jurisdiction
of their consuls, and the repeated bombardment of Japanese ports. The
adaptation was one of the reasons which later enabled Japan to defeat Russia
in the war of 1904/5, to occupy Korea and Manchuria, and gain recognition
as a new major power in the Peace of Portsmouth (USA) of 1905. The end
of white rule and the complex process of decolonization in Asia was then
brought forward by Japanese aggression and initial victories in the Second
World War, which helped to destroy the myth of the invincibility of the
European colonial masters.
The Western hemisphere

European states, however, were also confronted with new problems in the
wake of the American rebellion against Britain. The American Declaration
of Independence of 1776, invoking the principle of self-determination, had
led to the recognition after seven years of war of a new subject of
international law by the mother country, followed at the beginning of the
nineteenth century by the independence of Latin-American states from Spain
and Portugal. The dissociation from Europe was expressed in the doctrine
proclaimed by President Monroe in 1823 against European intervention in
the Western hemisphere.32 The Monroe doctrine, never accepted as a legal
one in Europe, however, was to become the basis for numerous interventions
by the United States in Latin America. Nevertheless, the United States and
Latin American countries remained within the system of European
international law and made significant contributions to its development.
While the practice of the United States, to take one important example,
furthered international arbitration to settle disputes,33 South American states
attempted to protect themselves against foreign intervention and European
dominance by formulating a new regional American international law.34
On the whole, the general American attitude towards international relations
was more idealistic and law-orientated than the traditional realistic and
power-motivated perspective of European states. But even the United States,
although it cherished freedom from colonial domination in its own history,
for example, was engaged in opening up China, and took the Philippines in
1898 after the war with Spain.
From what has been outlined above, it naturally follows that in the 35 See Chapter 19 below, 306–9.
36 W.Benedek, Drago-Porter Convention
‘classical period’ the use of force short of war was also covered by (1907), EPIL I (1992), 1102–3.
international law.35 A famous example for the latter was the failure of 37 See Chapter 17 below, 260–1.
38 On the role of doctrine as a
the Argentinian Foreign Minister Luis Drago at the beginning of the subsidiary source of contemporary
twentieth century to change the practice of powerful European states international law see Chapter 3 below,
using armed force to achieve payment from other states for damage caused 51–2.
39 See Grewe (1984), op. cit., 300 et
to them or their nationals (‘gun-boat diplomacy’).36 Venezuela demanded seq., 471 et seq., 647 et seq.
that the question of debts owed to Britain, Germany and Italy for civil- 40 See J.P.Egido, Natural Law, EPIL 7
war damage, the seizure of ships by the Venezuelan government, and (1984), 344–9; R.Ago, Positivism, ibid.,
385–93; H.J.Steiner, International Law:
stemming from loans granted to Venezuela for railways, be settled by a Doctrine and Schools of Thought in the
Venezuelan commission. The commission refused to accept full Twentieth Century, EPIL II (1995), 1216–
27; see also A.Verdross/H.F. Koeck,
compensation of the European claims and, after an ultimatum, in 1902 Natural Law: The Tradition of Universal
the European claimant states sank three Venezuelan ships, bombarded Reason and Authority, in Macdonald/
Puerto Cabello and imposed a naval blockade upon Venezuela. The Johnston (eds), 1983, op. cit., 17–50;
M.Bos, Will and Order in the Nation-
reaction of the United States to a note of protest sent by Drago with State System: Observations on
reference to the Monroe doctrine was negative. In effect, the United Positivism and International Law, ibid.,
States pointed out that foreign intervention would not occur if Latin- 51–78.
41 See T.M.C.Asser Instituut (ed.),
American countries respected their international obligations concerning International Law and the Grotian
the protection of foreign property.37 Heritage, 1983; P.Haggenmacher,
Grotius et la doctrine de la guerre juste,
1983; A.Dufour/P.Haggenmacher/J.
Toman (eds), Grotius et l’ordre juridique
Theory: naturalists and positivists international, 1985; H.Bull/B. Kingsbury/
A.Roberts (eds), Hugo Grotius and
Having outlined some important aspects of state practice, it is now International Relations, 1990;
C.G.Roelofsen, Grotius and the ‘Grotian
appropriate to turn to doctrine, which has always had much less influence Heritage’ in International Law and
on the actual development of international law than many writers have International Relations, The
been willing to admit.38 The notion of European international law was Quartercentenary and its Aftermath (ca.
1980–1990), Grotiana 11 (1990), 6–28;
prepared by academic writers who during the formative period of O.Yasuaki (ed.), A Normative Approach
international law provided legal concepts and systematic arguments to War. Peace, War, and Justice in
Hugo Grotius, 1993; P.Borschenberg,
justifying the interests of the emerging powers, especially with regard to Hugo Grotius ‘Commentarius in theses
the ambitions of their own respective countries, as may be noted in the XI’: An Early Treatise on Sovereignty,
the Just War, and the Legitimacy of the
development of the law of the sea.39 Since they have, to some extent, left Dutch Revolt, 1994.
a mark on the modern law, it is necessary to say something about them, 42 A.Truyol Serra et al. (eds), Actualité
de la pensée juridique de Francisco de
and in particular to describe the two main schools of thought: naturalists Vitoria, 1988.
and positivists, lines of thinking about international law which still belong 43 See T.Meron, Common Rights of
Mankind in Gentili, Grotius and Suarez,
to the mainstream of Western conceptions of international law today, AJIL 85 (1991), 110–17.
although they have faced challenge.40 44 M.v.Gelderen, The Challenge of
The leading naturalist writer was the Dutchman Hugo Grotius (1583– Colonialism: Grotius and Vitoria on
Natural Law and International Relations,
1645), who is often regarded as the founder of modern international law;41 Grotiana 14/5 (1993/4), 3–37.
other important naturalist writers were the Spaniards Vitoria (1486–
1546)42 and Suarez (1548–1617), Gentili, an Italian Protestant who fled
to England (1552–1608),43 and the Englishman Zouche (1590–1661).
Although disagreeing about many things, all these writers agreed that the
basic principles of all law (national as well as international) were derived,
not from any deliberate human choice or decision, but from principles of
justice which had a universal and eternal validity and which could be
discovered by pure reason; law was to be found, not made.
These basic principles of law were called natural law. But Vitoria’s
early attempt to establish ius naturae as the universal law of humanity
to include the so-called ‘Indian’ nations in the Americas in its sphere of
legal protection remained a vain theoretical suggestion.44 Natural law
was originally regarded as having a divine origin, but Grotius wrote that
45 M.W.Janis (ed.), The Influence of

Religion on the Development of
natural law would still have existed even if God had not existed; instead,
International Law, 1991. Grotius considered that the existence of natural law was the automatic
consequence of the fact that men lived together in society and were capable
of understanding that certain rules were necessary for the preservation of
society. According to this line of argument, the prohibition of murder, for
instance, was a rule of natural law, independently of any legislation
forbidding murder, because every intelligent man would realize that such a
rule was just and necessary for the preservation of human society.
The theory of natural law has a long tradition, going back to Roman
times, and is still the official philosophy of law accepted by the Roman Catholic
Church. But nowadays it is not accepted by many people outside the Roman
Catholic Church.45 Having religious overtones and being incapable of
verification, the theory is suspect in a scientific and secular age. The essence
of the theory was that law was derived from justice, and, although lawyers
and judges often appeal to justice in order to fill gaps or to resolve uncertainties
in the law, the theory of natural law must logically lead to a much more
radical conclusion, namely that an unjust rule is not law at all and can be
disregarded by the judge; but this is a conclusion which no modern legal
system would accept. Even the supporters of the theory have been unable to
state principles of natural law with any precision; for instance, ‘Thou shalt
not kill’ may be accepted as a universally valid rule, necessary for the
maintenance of human society, but writers on natural law do not agree about
the number of exceptions to the rule which ought to be recognized.
However, in the sixteenth and seventeenth centuries the theory was
universally accepted, and it performed a very useful function by encouraging
respect for justice at a time when the collapse of the feudal system and the
division of Europe between Catholics and Protestants might otherwise have
led to complete anarchy. It is hard to think of any other foundations on
which a system of international law could have been built at that time.
Even the vagueness of the natural law theory, which is nowadays such a
defect, was less apparent in the time of Grotius, who illustrated his arguments
with biblical quotations, references to Greek and Roman history and—
above all—analogies drawn from Roman private law, which at that time
was admired as a fairly accurate reflection of natural law and was therefore
copied by many European countries.
After Grotius’ death the intellectual climate became more sceptical, and
international law would have lost respect if it had remained based on the
theory of natural law. People were beginning to argue by 1700 that law was
largely positive, that is, man-made; consequently, law and justice were not
the same thing, and laws might vary from time to time and from place to
place, according to the whim of the legislator. Applied to international law,
positivism (as this new theory was called) regarded the actual behaviour of
states as the basis of international law. The first great positivist writer on
international law was another Dutchman, Cornelis van Bynkershoek (1673–
1743), who was to some extent ahead of his time; positivism had its roots
in the eighteenth century but was not fully accepted until the nineteenth
century. Unfortunately, apart from collecting the texts of treaties, little
attempt was made to study the practice of states scientifically until the
twentieth century.
46 N.G.Onuf, Civitas Maxima: Wolff,

An attempt to combine naturalism and positivism was made by the Vattel and the Fate of Republicanism,
Swiss writer Emerich von Vattel (1714–67).46 He emphasized the inherent AJIL 88 (1994), 280–303.
47 See G.H.Sabine/T.L.Thorson, A
rights which states derived from natural law, but said that they were History of Political Theory, 4th edn 1973,
accountable only to their own consciences for the observance of the Part III: The Theory of the National
State.
duties imposed by natural law, unless they had expressly agreed to treat
those duties as part of positive law. Vattel exercised a strong and
pernicious influence on many writers and states during the eighteenth,
nineteenth and early twentieth centuries; even today his influence is still
sometimes felt. An intellectual climate which encourages states to assert
their rights and to ignore their duties is a sure recipe for disorder.
The theory of sovereignty

One word which recurs frequently in the writings of Vattel’s followers is
‘sovereignty’, and it is doubtful whether any single word has ever caused
so much intellectual confusion and international lawlessness.
The theory of sovereignty began as an attempt to analyse the internal
structure of a state. Political philosophers taught that there must be,
within each state, some entity which possessed supreme legislative power
and/or supreme political power. The theory dates back to the sixteenth
century and political scientists usually refer to the writings of Machiavelli
(1469– 1527), Jean Bodin (1530–1596) and Thomas Hobbes (1588–
1679).47 But its best-known exponent, as far as lawyers are concerned,
was John Austin (1790–1859), who defined law as the general commands
of a sovereign, supported by the threat of sanctions. Since international
law did not fit his theory, he said that international law was not law. In
fact, it is hard to find any legal system which does fit his theory. In
federal states like the United States, legislative power is divided by the
constitution between the federation and the member states, neither of
which has supreme legislative power. Even in England, where the Queen
in Parliament has supreme legislative power, legislation is not the only
source of law, nor the oldest source of law.
It was easy to argue, as a corollary to this theory, that the sovereign,
possessing supreme power, was not himself bound by the laws which he
made. Then, by a shift of meaning, the word came to be used to describe,
not only the relationship of a superior to his inferiors within a state
(internal sovereignty), but also the relationship of the ruler or of the
state itself towards other states (external sovereignty). But the word still
carried its emotive overtones of unlimited power above the law, and this
gave a totally misleading picture of international relations. The fact that
a ruler can do what he likes to his own subjects does not mean that he
can do what he likes—either as a matter of law or as a matter of power
politics—to other states.
When international lawyers say that a state is sovereign, all that they
really mean is that it is independent, that is, that it is not a dependency of
some other state. They do not mean that it is in any way above the law. It
would be far better if the word ‘sovereignty’ were replaced by the word
‘independence’. In so far as ‘sovereignty’ means anything in addition to
48 Wimbledon case, PCIJ, series A,

no. 1, 25. In this case Germany had
‘independence’, it is not a legal term with any fixed meaning, but a wholly
refused the British steamship emotive term. Everyone knows that states are powerful, but the emphasis
Wimbledon, chartered by a French
company, access to the Kiel Canal
on sovereignty exaggerates their power and encourages them to abuse it;
on the grounds that the vessel had above all, it preserves the superstition that there is something in international
on board a cargo of munitions and
artillery stores consigned to the
cooperation as such which comes near to violating the intrinsic nature of a
Polish naval base at Danzig. The ‘sovereign’ state.
refusal was based upon German
Neutrality Orders issued in 1920 in
At the end of the nineteenth century, many international lawyers,
connection with the war between particularly in Germany, developed the doctrine of sovereignty to the point
Russia and Poland. The court held
that Germany had acted in violation
where it threatened to destroy international law altogether. Since 1914 there
of Art. 380 of the Versailles Peace has been a reaction. International lawyers in the Western world have rejected
Treaty; see I.v.Münch, The
Wimbledon, EPIL 2 (1981), 293–6.
the old dogmas about sovereignty and the inherent rights of states; indeed,
49 See Chapter 5 below, 80. scientific examinations of the practice of states, which were carried out for
50 See L.Wildhaber, Sovereignty and
International Law, in Macdonald/
the first time in the twentieth century, have shown that those dogmas were
Johnston (eds), 1983, op. cit., 425– never taken half as seriously by states as they were by theorists. In 1923, in
52; F.H.Hinsley, Sovereignty, 2nd edn
1986; A.James, Sovereign
the Wimbledon case, the Permanent Court of International Justice said:
Statehood, 1986; H.Steinberger, ‘The Court declines to see, in the conclusion of any treaty by which a state
Sovereignty, EPIL 10 (1987), 397–
418; I.D.DeLupis, International Law
undertakes to perform or refrain from performing a particular act, an
and the Independent State, 1988; abandonment of its sovereignty…[T]he right of entering into international
R.H.Jackson, Quasi-States:
Sovereignty, International Relations
engagements is an attribute of state sovereignty.’48
and the Third World, 1990; J. Of course, one can imagine treaties containing such far-reaching
Bartelson, A Genealogy of
Sovereignty, 1993; G.Gottlieb, Nation
obligations as depriving a state of its independence—for instance, a treaty
Against State. A New Approach to whereby one state becomes a protectorate of another state.49 But there is no
Ethnic Conflicts and the Decline of
State Sovereignty, 1993;
fixed dividing line between independence and loss of independence; it is a
O.Schachter, Sovereignty—Then matter of degree and opinion; even ‘independence’ shares some of the emotive
and Now, in Macdonald (ed.), 1994,
op. cit., 671–88; L.Henkin, The
qualities of the word ‘sovereignty’. For instance, the idea of joining a
Mythology of Sovereignty, ibid., 351– supranational organization like the European Union, which would have
8; N.Schrijver, The Dynamics of
Sovereignty in a Changing World, in
been regarded as an intolerable restriction upon independence a century
K.Ginther/E. Denters/P.J.I.M.de ago, is nowadays discussed in the more realistic terms of economic
Waart (eds), Sustainable
Development and Good
advantages and disadvantages. While in the West the doctrine of sovereignty
Governance, 1995, 80–9; has been losing much ground in view of increasing international
M.R.Fowler/ J.M.Bunck, Law, Power
and the Sovereign State. The
interdependence, developing countries still value it highly as a ‘cornerstone
Evolution and the Application of the of international relations’ to protect their recently gained political
Concept of Sovereignty, 1995;
A.Chayes/A.H. Chayes, The New
independence.50
Sovereignty. Compliance with
International Regulatory Agreements,
1995; K.M. Meesen, Sovereignty, in
Wolfrum UNLPP II, 1193–201; Legal results of the period up to the First World War
A.Bleckmann, Article 2(1), in Simma
CUNAC, 77–87. See also the
literature in Chapter 1 above, 3 and What were the main legal results of the development of this ‘classical’ and
Chapter 5 below, 13–80.
51 See Chapter 12 below, 181–94.
basically European international law, which seemed to view states as living
52 See Chapter 8 below, 118–26. more in a situation of anarchy than of law and order? In the first place, a
number of basic rules and principles of international law emerged in this
55 See Chapter 17 below, 256–69. period, such as the principle of territorial sovereignty securing exclusive
control and jurisdiction of states over their territory, the freedom of the
high seas,51 the law on state immunity from the jurisdiction of foreign
courts,52 the law on diplomatic and consular relations,53 the principle of
pacta sunt servanda (treaties must be kept) and the law of treaties,54 rules
on the diplomatic protection of foreigners and their property,55 and on
neutrality.56
THE PERIOD UP TO THE FIRST WORLD WAR 19
The unlimited right to use force 58 For the following see P.Malanczuk,
Humanitarian Intervention and the
A central feature of classical international law was that it did not place Legitimacy of the Use of Force, 1993,
any restriction on the right of states to use force and to go to war which 7–11 with references.
59 II Principe, written in 1513, published
was considered to be an inherent attribute of the sovereignty and equality in 1531. Less attention has been paid to
of states. Effective annexation of conquered foreign territory was a valid Machiavelli’s other important work, the
legal title to acquire sovereignty over it.57 There is also no doubt that the Discorsi.
60 De Rei publica (1576), published in
concepts of international law prevailing at this time served to facilitate French in 1579.
the process of colonization. Sovereignty could be acquired over terrae 61 Grewe (1984), op. cit., 211–16.
nullius, territory allegedly belonging to nobody, a notion applied to areas 62 F.de Martens, Traité de droit
international, 1883, 398.
throughout the world lacking a strong central power able to resist
conquest. If resistance happened to occur, either treaties with local rulers
were available as legal instruments, or war could be used.
The unlimited right to use force was also reflected in the doctrine of
intervention.58 In the sixteenth century, when the fundament of the theory
of the modern sovereign state was laid by Machiavelli59 and Bodin,60 the
specific historical doctrine of intervention, also advocated by such authors
as Vitoria, Gentili, and Grotius, was primarily motivated by religious
considerations.61 These were superseded after the Thirty Years War
(1618–48) by the practice of more general political intervention. Grewe
also refers to comments by Grotius, not usually cited, which seem to
indicate that the great writer, in accordance with the spirit of his age,
when addressing humanitarian intervention, in reality meant the right
of religious intervention founded upon natural law to protect fellow
Christians. It is notable that even much later there were still writers such
as de Martens who in 1883 justified intervention by the ‘civilized powers’,
but only in relation to ‘non civilized nations’, when ‘the Christian
population of those countries is exposed to persecutions or massacres’
by ‘common religious interests and humanitarian considerations’.62
In the nineteenth century, the principle of non-intervention, as
formulated earlier by Wolff and Vattel, had by then acquired general
recognition. Nevertheless, the international legal order of the nineteenth
century was characterized by certain exceptions to this principle, namely
the right of intervention based on treaties and on the principles of self-
help and self-preservation. Attempts by the monarchies of Austria, Russia
and Prussia after 1815 generally to establish a principle of military
intervention on the basis of the Holy Alliance, and by Napoleon III to
find recognition of a right of intervention in favour of national self-
determination remained unsuccessful.
However, a new independent reason for intervention based on
‘humanity’ emerged in theory which was related to the ideas of political
liberalism and the concept of fundamental human rights. State practice
in the nineteenth century increasingly invoked humanitarian reasons
to justify intervention—often, however, as a disguise for intervention
made for political, economic or other reasons. The doctrine played a
role in the intervention by European powers in 1827 in support of
the Greek uprising against the Turks, the intervention by Britain
and France in 1856 in Sicily, allegedly in view of political arrests
and supposed cruel treatment of the prisoners, and the famous
intervention of Britain, France, Austria, Prussia, and Russia in Syria
in 1860–1 following the murder of thousands of Christian Maronites
63 Grewe (1984), op. cit., at 578,

relying on Martens, Rougier and
by the Druse Muslims.63 These acts were the prelude to repeated interventions
Dupuis, records that the action, by European powers into the Ottoman Empire in response to uprisings and
which aimed at a reform of the
Turkish administration, was based
killings on Crete in 1866, in Bosnia in 1875, Bulgaria in 1877 and Macedonia
upon the fiction of an invitation to in 1887. Other instances—of diplomatic intercession—on humanitarian
intervene by the Sultan. The
conclusions of the study of the case
grounds include the protest by Britain, France and Austria, supported by
by I.Pogany, Humanitarian Italy, Spain, Portugal and Sweden in 1863 against the methods used by
Intervention in International Law:
The French Intervention in Syria Re-
Russia to suppress the Polish uprising and numerous protests by the Great
Examined, ICLQ 5 (1986), 182, are Powers, including the United States, against the suppression of the Jews. At
somewhat different.
64 See Grewe (1984), op. cit., at
the turn of the century and later, the intervention by the United States in
579, stressing that the list is by no Cuba in 1898 or the pressure exercised by Britain and the United States on
means exhaustive.
65 Scupin. op. cit., at 771.
Belgium because of the misery of the indigenous population in the Congo,
66 T.Schieder, Crimean War, EPIL 7 and in 1912/13 on Peru in view of the ruthless exploitation of the local
(1984), 59, at 61.
rubber collectors, could also be mentioned.64
68 Text in 52 CTS 243. See H.-J. This practice revealed a new tendency in the official grounds advanced
Schlochauer, Jay Treaty, EPIL 1
(1981), 108–11.
by states to justify intervention in that period, but not a new rule of
customary international law. In reality, states were mostly pursuing their
own ends when intervening in another state for alleged humanitarian
purposes, and thus the institution of intervention, as Scupin notes, ‘was
unable to provide a complete justification for such action’.65 Especially
the frequent interventions in the Ottoman Empire to protect Christians
must be seen in the light of the divergent interests of European powers
at stake in the Middle East and the political order of European Turkey.
Humanitarian intervention was a welcome pretext in their rivalry to
establish influence in the declining Empire of the ‘old man at the
Bosporus’. The Crimean War of 1853, in which Russia went to war
with Turkey officially on the grounds of securing stronger guarantees
for the protection of Christians and was then confronted with the
unexpected French-British military alliance and pressure from Austria,
is instructive historical evidence for ‘the rise of a new era of power-
political realpolitik’.66
The peaceful settlement of disputes

At least as a normative concept, the idea of the peaceful settlement of
disputes67 through negotiations, conciliation, mediation or arbitration
evolved since the Peace of Westphalia, although the origins are much older.
Arbitration, in the sense of eliminating a dispute by binding third-party
decision, however, was not accepted by absolute monarchs in practice. The
development of the modern history of arbitration commenced with the 1794
Jay Treaty of Amity, Commerce and Navigation, in which Britain and the
United States agreed to settle by an arbitration commission claims for
damages by British and American nationals whose property had been
confiscated or ships taken by the enemy government.68 From 1798 to 1804
the commission rendered over 536 awards, some of which became important
precedents for the subsequent development of the law. This successful
experience was the starting-point for a series of treaties containing arbitration
clauses in the nineteenth century, but the development remained basically
limited to bilateral treaties and disputes of subordinate political interest.
THE PERIOD UP TO THE FIRST WORLD WAR 21
69 A.M.Trebilcock, Slavery, EPIL 8
Prohibition of the slave trade (1985), 481ñ4; O.I.Tiunov, Pacta sunt
servanda: The Principle of Observing
One aspect that deserves to be mentioned separately is the prohibition of International Treaties in the Epoch of the
the slave trade in the name of humanity.69 By the eighteenth century, the Slave-Owning Society, St. Louis ULJ 38
(1994), 929ñ45.
expansion of European trade had come to cover not only goods, but in an 70 Additional Articles to the Paris Peace
extensive manner also human beings. It was based on a lucrative triangular Treaty of 30 May 1814, 63 CTS 193.
71 For the earlier development see M.
trade transporting goods from Europe to Africa, African slaves, mostly Keen, The Laws of War in the Late
sold by Arab dealers, to the plantations in America, and finally products Middle Ages, 1993; T.Meron, Henryís
Wars and Shakespeareís Laws:
and raw materials from America to Europe. The slave trade started in the Perspectives on the Law of War in the
sixteenth century when Spain granted fixed-term monopoly licences Later Middle Ages, 1993.
(asientos) to private entrepreneurs to introduce African slaves to Spanish 72 See P.Malanczuk, American Civil
War, EPIL I (1992), 129ñ31.
America and then later involved other European countries. After Britain
had acquired the monopoly from Spain to supply slaves to the Spanish
colonies in 1713, it transferred it to the South Sea Company; it is estimated
that between the years 1680 and 1786 British dealers alone transported
over two million African slaves to America. In total, at least fifteen million
Africans were enslaved for shipment to the Americas.
Opposition to this practice, from both in and beyond the United
Kingdom, gradually led to its prohibition in international law in the
nineteenth century. Following national measures, the first treaty to
condemn the slave trade was concluded between France and Britain in
1814.70 This humanitarian principle was also adopted at the Vienna
Congress of 1815 and in subsequent multilateral treaties leading to the
comprehensive General Act of the Brussels Conference relative to the
African Slave Trade of 1890. The Act was ratified by all European states,
the United States, Persia, Turkey, the Congo and Zanzibar and provided
effective military and legal measures to terminate the slave trade, although
the status of domestic slavery remained unaffected. In the abolition of
the slave trade, the British Royal Navy, ruling the seas, played a central
role as a maritime enforcement agency controlling shipping. At the same
time, as a side-effect, Britain was placed in the useful position of being
able to monitor overseas trade by other states in goods in general.
Humanization of the law of warfare

Furthermore, the humanization of the international law of warfare
commenced with agreements concluded by the military commanders of
the belligerent parties concerning prisoners of war, the wounded and
sick, and the protection of military hospitals already prior to the
nineteenth century.71 Some more relevant developments occurred after
the experience of the Crimean War (1853–6) and the lessons of the first
modern war, the American Civil War (1861–5), with its enormous
casualties on both sides (Union forces: 359,528 dead and 275,175
wounded; Confederate forces: about 258,000 dead and 225,000
wounded),72 and the example of the 1863 Instructions for United States
Armies in the Field (Lieber Code). The Geneva Convention of 1864,
initiated by Henry Dunant, gave some status to work assisting the
wounded. It recognized functions in relation to the state parties to the
Convention of the International Committee of the Red Cross, founded
as a private law association under the laws of the Canton of Geneva in
1863. It was followed by the Petersburg Declaration of 1868
73 The Institute is a private

association of scholars that was
prohibiting the use of small exploding projectiles, which, however, remained
founded in 1873 at the same time as insignificant in practice. A conference in Brussels in 1874 and proposals
the International Law Association,
which is larger and more open. See
presented by the Institut de Droit International73 in 1880 paved the way for
F.Münch, Institut de Droit the Hague Peace Conferences of 1899 and 1907 laying down the basis for
International, EPIL II (1995), 997–
1000; R.Stödter, International Law
the development of modern international humanitarian law.74
Association, ibid., 1207–8.
75 See D.W.Bowett, The Law of First forms of international organizations
International Institutions, 4th edn
1982, 1–13; D.Vignes, The Impact
of International Organizations on the
In the nineteenth century also the first rudimentary forms of international
Development and Application of cooperation emerged.75 Commerce required the inter nationalization of rivers
Public International Law, in
Macdonald/ Johnston (eds), 1983,
and the establishment of international river commissions, as in the case of
op. cit., 809–55; I.Seidl- the Rhine (1831/68),76 the Scheldt (1839)77 and the Danube (1856/ 65).78
Hohenveldern/G.Loibl, Das Recht
der Internationalen Organisationen,
Furthermore, the development of technology, communications and
5th edn 1992, 12–19. commerce prepared the way for international administrative unions with
76 F.Meißner, Rhine River, EPIL 12
(1990), 310–6.
legal personality limited to the discharge of particular functions. These
77 B.Vitányi, Scheldt River, EPIL 12 included the Geodetic Union (1864), concerned with surveying the earth,
(1990), 341–3.
78 I.Seidl-Hohenveldern, Danube
the International Telegraph Union (1865) as the forerunner of the current
River, EPIL I (1992), 934–7. International Telecommunication Union,79 the Universal Postal Union
79 A.Noll, International
Telecommunication Union, EPIL II
(1874),80 the Berne Bureau for the Protection of Industrial Property (1883),81
(1995), 1379–85. the Berne Bureau for the Protection of Literary and Artistic Works (1886),82
80 L.Weber, Universal Postal Union,
EPIL 5 (1983), 383–6.
and the Union for the Publication of Customs Tariffs (1890).
81 K.Pfanner, Industrial Property,
Protection of, EPIL II (1995), 964–76.
82 See P.Katzenberger, Literary and The Hague Peace Conferences of 1899 and 1907
Artistic Works, International
Protection, EPIL 5 (1983), 202–11.
83 J.M.Mössner, Hague Peace
The period of ‘classical’ international law came to an end with the two Hague
Conferences of 1899 and 1907, Peace Conferences of 1899 and 1907,83 the first initiated by Tsar Nicholas II
EPIL II (1995), 671–7.
84 See K.J.Partsch, Vital Interests,
on the basis of his famous peace manifesto, the second by President Theodore
EPIL 10 (1987), 526–8. Roosevelt. The Conference of 1899 resulted in three conventions and three
85 See A.D’Amato, Domestic
Jurisdiction, EPIL I (1992), 1090–6.
declarations dealing with the law of land warfare, the law of sea warfare and
See also Chapters 18, 285–6 and the peaceful settlement of disputes, which led to the innovation of the
21, 368–9 below.
86 Text in AJIL 10 (1916), Supp.
establishment of the Permanent Court of Arbitration in The Hague. It also
See H.-J.Schlochauer, Bryan adopted a non-binding resolution on limiting the military expenditure of parties.
Treaties (1913/1914), EPIL I (1992),
509–11.
The 1907 Conference accepted a number of further instruments which partly
dealt with the same matters as the earlier Conference. The Conferences, however,
failed to address the real issues of the major tensions in the world and were
thus unable to prevent the outbreak of the First World War. In addition,
important aspects, such as the problem of colonialism, were entirely excluded
from the agenda. It was also characteristic that the compromise finally agreed
upon with regard to the settlement of conflicts by compulsory arbitration, at
the insistence of Britain and France, reserved to states the right to determine for
themselves what affected their ‘vital interests’84 falling within the domaine réservé
(the domestic jurisdiction of states).85 As a consequence, what was in fact
excluded from the obligation to arbitrate was left to the discretion of states.
The attempt to remedy the deficiencies of the ‘vital interests’ clause by
the American Secretary of State W.J.Bryan was objected to by the United
States Senate. The so-called Bryan Treaties of 1913/1486 were actually
concluded only with the Western and Eastern European powers, and only
after the war had already broken out. The United States and Germany did
not enter into such a treaty. The disaster of the First World War itself began
THE WATERSHED AFTER THE FIRST WORLD WAR 23
87 Text in 225 CTS 188. See E.v.

formally in accordance with classical international law, as it stood at Puttkamer, Versailles Peace Treaty
that time, with declarations of war. (1919), EPIL 4 (1982), 276–82.
What happened to the concept of ‘European public law’ during this 88 I.Seidl-Hohenveldern, Reparations,
EPIL 4 (1982), 178–80.
process? Towards the end of the nineteenth century, colonialism and 89 L.C.Green, British Commonwealth,
relations with territories outside Europe were gradually depriving it of EPIL I (1992), 495–9. See also W.Dale,
The Making and Remaking of
its content. At the Berlin Congress of 1878 only the six major European Commonwealth Constitutions, ICLQ 42
powers and Turkey were present. At the 1884/5 Berlin Congress twelve (1993), 67–83; W.Morvay,
states, including the United States, were already participating. The Hague Souveränitätsübergang und
Rechtskontinuität im Britischen
Peace Conference of 1899 assembled twenty-seven states, including the Commonwealth, 1974.
United States and Mexico, as well as Japan, China, Persia and Siam. At 90 See V.Kartashkin, The Marxist-
the second Peace Conference in 1907, forty-three states took part, among Leninist Approach: The Theory of Class
Struggle and Contemporary
which were seventeen American and four Asian states, but no country International Law, in Macdonald/
from Africa. International law, albeit European in origin, was thus Johnston (eds), 1983, op. cit., 79–102;
T.Schweisfurth, The Role of Political
gradually moving towards a universal system. Revolution in the Theory of International
Law, ibid., 913–53; idem, Socialist
Conceptions of International Law, EPIL
7 (1984), 417–24.
The watershed after the First World War 91 See the short summary in the sixth
edition of this book, 7–19 and K.
Grzybowski, Soviet Theory of International
The end of the First World War heralded a number of basic changes in Law for the Seventies, AJIL 77 (1983),
the international legal system, reflecting the war experience. Defeated 862–72. See also text below, 33.
92 See C.Parry, League of Nations,
Germany had to take sole responsibility for the war, under Article 231 EPIL 5 (1983), 192–201; The League of
of the Treaty of Versailles,87 lost the few colonies it had managed to Nations in Retrospect: Proceedings of
acquire as well as one-third of its territory in Europe, and was submitted the Symposium. Organized by the
United Nations Library and the Graduate
by the victors to a ruinous system of reparations,88 which was severely Institute of International Studies,
criticized by the distinguished economist John Maynard Keynes and Geneva 6–9 November 1980, 1983 and
the review by L.Gross, AJIL 80 (1986),
which helped to sow the seeds for the following war. The relative decline 200–15; H.Weber, League of Nations, in
of European powers as major actors on the world level and the rise of Wolfrum UNLPP II, 848–53.
the United States to global power manifested itself in the transformation 93 A.Rustemeyer, Wilson’s Fourteen
Points, EPIL 7 (1984), 539–42, at 540.
of the British Empire into the British Commonwealth.89
Moreover, the old international community was split by the emergence
of a new and radically different state, following the Russian Revolution
of 1917. The Soviet Union declared itself at odds with the existing system
of international law, but eventually came to some form of accommodation
in order to be able to maintain economic and political intercourse with
the outside world. The revolutionary new state displayed an attitude
towards international law which was quite distinct from the mainstream
of thinking.90 Based upon Marxism, as interpreted by Lenin and later by
Stalin, it originally denied that there could be one system of international
law that applied equally to capitalist and socialist states and rejected the
validity of older customary law and of treaties concluded by the Tsarist
government. The attitude changed later,91 but the Soviet Union remained
on the fringe of international affairs until it attained the status of a great
power after the Second World War.
The League of Nations

On the institutional level, the creation of the League of Nations was a
revolutionary step in inter-state relations.92 It followed the call in the
last of President Wilson’s Fourteen Points93 for the establishment of ‘[a]
general association of nations…under specific covenants for the purpose
of affording mutual guarantees of political independence and territorial
94 K.T.Samson, International
Labour Organization, EPIL II (1995),
integrity to great and small states alike’. The twenty-six articles constituting
1150–6. For the text of the ILO the League were entered into Part I of each of the European Peace Treaties,
Constitution, see Brownlie BDIL, 50.
95 1928 General Treaty for
just as the constitution of the new International Labour Organization94
Renunciation of War as an became incorporated as Part XIII.
Instrument of National Policy, 94
LNTS 57 (1929). See C.D.Wallace,
Kellogg-Briand Pact (1928), EPIL 3 The attempt to restrict the use of force
(1982), 236–9.
96 K.Zemanek, Treaties, Secret, The prime purpose of the League was the promotion of international cooperation
EPIL 7 (1984), 505–6; G.E.do
Nascimento Silva, Diplomacy, and the achievement of peace and security by the acceptance on the part of the
Secret, EPIL I (1992), 1033–4, parties, in principle, of ‘obligations not to resort to war’. The absolute right of
noting that at Versailles, Wilson
himself reverted to secret diplomacy
states to go to war was not intended to be excluded altogether. Thus, members
and held more than 150 meetings of the League were submitted to a cooling-off period of three months before
behind closed doors with Lloyd
George, Clemenceau and Orlando.
going to war. If the League Council, the Permanent Court of International
97 See D.Rauschning, Mandates, Justice or an arbitral tribunal were concerned with a dispute, war was only
EPIL 10 (1987), 288–95. permitted three months after a decision by the Court or the tribunal or the
98 See F.Capotorti, Minorities, EPIL
8 (1985), 385–95. On the limited submission of the Council report. Members disregarding such obligations under
judicial activity of the Permanent the Covenant were deemed to have committed an ‘act of war’, entitling, but
Court of International Justice in this
respect, see C.Weil, Minorities in not obliging, other member states to go to war with the state which had broken
Upper Silesia Case (Minority the Covenant. In Article 16 the Covenant provided for economic sanctions as
Schools), EPIL 2 (1981), 189– 91;
K.Lamers, Prince von Pless an instrument of redress, but Article 10, stipulating that members should
Administration (Orders), ibid., 236– undertake ‘to respect and preserve as against external aggression the territorial
7; C. Weil, Polish Agrarian Reform
(Orders), ibid., 230–1; M.Vierheilig,
integrity and existing political independence of all Members’, was not linked to
Minority Schools in Albania the sanctions system. Rather, the Council of the League was entrusted with the
(Advisory Opinion), ibid., 191–2; task of ‘advising’ on the methods of complying with this obligation. The
Weil, German Minorities in Poland,
Cases Concerning the, EPIL II uncertainty on the precise implications of this provision was the main reason
(1995), 553–5; W.Benedek, why the United States Senate refused to ratify the Covenant.
Exchange of Greek and Turkish
Populations (Advisory Opinions), The Paris Pact of 1928 on the Banning of War (Kellogg-Briand Pact),95
ibid., 304–5; C.V. Katte, Greco- initiated by the United States and France, attempted to achieve a broader
Bulgarian ‘Communities’ (Advisory
Opinion), ibid., 622–3. On the current prohibition of war, but it also refrained from establishing an effective
status of the protection of minorities enforcement mechanism. The right of self-defence, interpreted in a rather
in international law, see Chapters 6,
105–8 and 19, 338–41 below.
wide sense, was not affected. Britain reserved its rights to defend its vital
interests in protecting the British Empire, and the United States kept the
application of the Monroe Doctrine to its own discretion. Neither the League
system nor the Paris Pact were yet able to effectively replace the old customary
rule on the right of states to use armed force.
Other functions of the League

The League was further engaged in trying to promote disarmament and
open diplomacy to abolish the practice of secret treaties.96 Other functions
included the establishment of the mandates system, as ‘a trust for civilization’,
under Article 22 which put under international tutelage the nascent nations
in the former colonies of the defeated powers and of colonial territories
similarly detached.97 Moreover, responsibilities were assumed by the League
in the field of the treaty-based protection of minorities in Europe98 and in
social matters, such as health and fair labour standards.
The Permanent Court of Justice

Some advance was made in the inter-war period not only with regard to
international legislation dealing with social and economic affairs, but also
THE WATERSHED AFTER THE FIRST WORLD WAR 25
in international adjudication with the creation in 1921 of the Permanent 99 See H.-J.Schlochauer, Permanent
Court of International Justice, EPIL 1
Court of International Justice (PCIJ) in The Hague,99 the forerunner of (1981), 163–79; P.Haggenmacher/R.
the present International Court of Justice, which was later established Perruchoud/H.Dipla (eds), Cour
permanente de justice internationale
under the United Nations Charter.100 The Court handed down thirty-two 1922–1945, Vols 5–I and 5–II, 1989.
judgments in contentious cases, mostly between European states, and 100 See Chapter 18 below, 281–93.
twenty-seven advisory opinions which assisted in clarifying rules and 101 H.-J.Schlochauer, Permanent Court
of Arbitration, EPIL 1 (1981), 157–63.
principles of international law. Operating within a still limited and relatively On the reform of the PCA see Chapter
homogeneous society of nations, it enjoyed considerable authority, more 18 below, 294.
than was to be accorded later to the International Court of Justice. The 102 Generally on the concept see J.
Delbrück, Collective Security, EPIL I
activity of the Permanent Court of International Justice offers an (1992), 646–56; K.Doehring, Collective
explanation for why the Permanent Court of Arbitration (PCA), which Security, in Wolfrum UNLPP I, 110–5;
G.Bestermöller, Die Völkerbundsidee—
was established earlier but did not really constitute a standing court, Leistungsfähigkeit und Grenzen der
received only a small number of cases.101 Kriegsächtung durch Staatensolidarität,
1995. See also Chapter 22 below, 387–
415.
103 See H.A.Kissinger, Diplomacy,
Failure of the League system 1994, Chapter 10. For another critical
view see A.Eban, The U.N. Idea
Revisited, FA 74 (1995), 39–55.
In the field of peace and security, the refusal of a great power, such as the
United States, to join the League naturally placed the novel organization
into a difficult position to achieve its objectives. In effect, the League
subsequently came to be controlled by the interests of France and Britain.
Ratification was also denied by the Hejaz (Arabia) and Ecuador, but it is
interesting to note that all other generally recognized states were at some
time a member of the League. Originally, the membership of the League
was limited to the twenty-seven victor states signing the Treaty of
Versailles, plus ‘the British Empire’ (the United Kingdom, the Dominions
of Canada, Australia, New Zealand, South Africa and the still-dependent
India), plus thirteen listed neutral states. Later twenty-two new members
were admitted, including the former enemy states Austria and Bulgaria
(1920), Hungary (1922) and Germany (1926). The Soviet Union,
originally excluded, was admitted in 1934. But in the course of time
sixteen members also withdrew, including Costa Rica (1927), Brazil
(1928), Germany and Japan (1935), Italy (1939) and Spain (1941).
The League system failed for a variety of institutional and political
reasons. The most important aspect is perhaps the inherent contradiction
in the concept itself of collective security102 in the form of a mere
association of self-interested and sovereign states. The concept assumes
that all states have an equally strong interest in preventing aggression,
and that all states are willing to take the same risk to achieve this. If a
great power is involved in an act of aggression, the validity of this
assumption may well be very much open to doubt.103 At any rate, it
soon became clear that the organs of the League could only function to
the extent that the member states were able to agree.
The League remained incapable of dealing with the Japanese aggression
against China in 1932 when it occupied Manchuria, and with the Italian
aggression against Abyssinia in 1935–6. Limited economic sanctions adopted
by some fifty members of the League against Italy failed. This was the first
and last attempt to enforce the Covenant against a major power. In the
Spanish Civil War (1936–9), which was viewed as a threat to world peace
because of the direct and indirect intervention of many states, the
League affirmed the principle of non-intervention (the obligation of states
104 See A.-M.de Zayas, Spanish

Civil War, EPIL 7 (1984), 434–8.
not to intervene in the internal affairs of other states), demanded the
105 Parry, op. cit., at 200. withdrawal of all foreign combatants and condemned the bombardment of
106 On Germany’s international
relations from 1933 to 1945 and the
open towns, but the League’s resolutions had little effect.104 Japan’s renewed
attitude towards international law, aggression against China in 1937 merely produced a condemnation by the
see D.F.Vagts, International Law in
the Third Reich, AJIL 84 (1990),
League of the aerial bombardment of undefended towns. Germany’s attack
661–704; A. Carty, Interwar German on Poland in 1939 and the outbreak of the Second World War resulted in
Theories of International Law: The
Psychoanalytical and
nothing more than the postponement of already arranged Assembly and
Phenomenological Perspections of Council sessions. The last action of the League was to expel the Soviet Union
Hans Kelsen and Carl Schmitt,
Cardozo LR 16 (1995), 1235–92.
in 1939 because it refused to accept mediation of its claim against Finland.
107 For a new analysis on the basis A fair assessment of the failure of the League, however, must take into
of declassified documents fifty years
later, see B.J.Bernstein, The Atomic
account its confrontation with the ruthless totalitarian regimes of the period.
Bombings Reconsidered, FA 74 As noted by Clive Parry:
(1995), 135–52.
108 On the 1996 advisory opinion
given by the ICJ, see Chapter 20 it was the destiny of the League to encounter a greater measure of
below, 346–50.
deliberate aggression, attended by a wilful and deliberate disregard
of all humanitarian considerations, than has ever been
manifestated—again either before or since— in any comparable
span of years. For Japan, Italy and Germany in turn asserted during
the life of the League an absolute right to go to war for any reason
or no reason, and an indifference to the laws of either war or peace
to which the only ultimate answer could be, as in fact it proved to
be, likewise war unlimited in scale or method.105
Development after the Second World War
The international legal system had failed to prevent the outbreak of the
Second World War, to constrain the aggression by Hitler and to stop the
unspeakable atrocities committed by Nazi Germany throughout Europe.106
Nor did it prevent, to take a quite different example, the calculated Allied
destruction by saturation bombing of German and Japanese cities, causing
immense casualties among the civilian population. Before the United Nations
Charter, signed on 26 June 1945, entered into force on 24 October 1945,
the United States ended the war in the Pacific by using the atomic bomb
against Hiroshima and Nagasaki in August 1945. Whether this was
necessary, to force Japan into capitulation and save the lives of many
American soldiers and further Japanese military and civilian casualties which
an invasion of Japan may have resulted in, or was at least equally meant as
a warning to Stalin, is still a matter of dispute among historians,107 as also
is the issue of the legality of nuclear weapons under current international
law among lawyers.108 The Nuremberg and Tokyo Trials affirmed the
individual responsibility of German and Japanese leaders for committing
crimes against peace, war crimes and crimes against humanity, but were
often seen as the victor’s justice, although the procedures were fair.109
The prohibition of the use of force and collective security in

the United Nations Charter
The decision to establish a new global organization of states to preserve
peace after the war had already been prepared by the Atlantic Charter of
1941, in which Roosevelt and Churchill declared their hope ‘after the
DEVELOPMENT AFTER THE SECOND WORLD WAR 27
110 Text in AJIL 35 (1941), 191. See H.-
final destruction of Nazi tyranny…to see established a peace which will J.Schlochauer, Atlantic Charter (1941),
afford to all nations the means of dwelling in safety within their own EPIL I (1992), 288–9.
111 See H.-J.Schlochauer, Dumbarton
boundaries’ and ‘to bring about the fullest collaboration between all Oaks Conference (1944), EPIL I (1992),
nations in the economic field with the object of securing, for all, improved 1115–17; W.Benediks, The San
Francisco Conference on International
labour standards, economic advancement and social security’.110 Organization: April–June 1945, 1994;
The United Nations Charter, sponsored by the United States, Britain, W.G.Grewe, The History of the United
Nations, in Simma CUNAC, 1–23; H.
the Soviet Union and China, and originally signed by fifty-one states, was Weber, History of the United Nations, in
designed to introduce law and order and an effective collective security Wolfrum UNLPP I, 572–80; R.C.
Hilderbrand, Dumbarton Oaks. The
system into international relations. On the basis of preparatory work done Origins of the United Nations and the
at the 1944 Dumbarton Oaks Conference, the Charter of the United Search for Postwar Security, 1990. See
Chapters 21, 364–84 and 22, 385–430
Nations was adopted at the 1945 San Francisco Conference and entered below.
into force on 24 October 1945.111 The main innovation was the attempt 112 See Chapter 19 below, 309–18.
113 See Chapter 22 below, 387–415,
to introduce a comprehensive ban on the use of force in Article 2(4) of the 425–30.
Charter, with the exception of the right of states to collective and individual 114 L.Weber, Cuban Quarantine, EPIL I
(1992), 882–5.
self-defence against an armed attack, in Article 51.112 The preservation of 115 For a critical assessment see R.S.
peace was made the overriding goal of the United Nations. While the McNamara (with B.VanDeMark), In
Retrospect: The Tragedy and Lessons
League of Nations had possessed no institutional machinery and executive of Vietnam, 1994. See also Chapter 19
power to enforce the Covenant and decisions of the League, the United below, 325.
116 See Chapters 21, 374–7 and 22,
Nations Charter established a collective security system in Chapter VII, 391 below.
giving the Security Council the authority to determine whether there is a 117 See Chapter 20 below, 349.
threat to or breach of international peace and security and to adopt binding
economic and military measures against an aggressor state.113
The UN collective system did not work, due to the antagonism that
developed between the former allies after the war, and during the Cold
War in the following four decades, the United Nations failed to achieve
its prime objective. Thus, for example, the controversial military
‘quarantine’ imposed by the United States upon Cuba in 1962 in response
to the build-up in Cuba of Soviet missiles with a capability of reaching
targets in large parts of the Western Hemisphere, used the regional system
of the Organization of American States (OAS) instead of the non-
functioning UN collective security system for legitimization.114 Another
example of the non-functioning of the UN collective security mechanism
during the East-West conflict is the fact that the Vietnam War never led
to any decision by the Security Council.115
The recognition of the special military, economic and political status
of great powers, however, was built in from the beginning in the regulation
of the voting procedure of the Security Council, giving the United States,
the Soviet Union, Britain, France and China (originally represented by the
government of Taiwan) as ‘permanent members’ the right to veto any
decision they disliked.116 The statement in Article 2(1) of the Charter that
the organization ‘is based on the principle of the sovereign equality of all
its Members’ was thus qualified by the fact that the five permanent members
of the Security Council were made more equal than the rest of the member
states. Similarly, the five official nuclear powers retained a privileged legal
position in the later Treaty on the Non-Proliferation of Nuclear Weapons.117
The relative decline of Britain and France as Great Powers became
most apparent in the 1956 Suez crisis when the United States and the
USSR found a rare occasion to unite in the UN Security Council and
forced them to withdraw from their military occupation of the Suez
118 B.Broms, Suez Canal, EPIL 12

(1990), 360–5. See also G.Marston,
Canal118 area, which they had undertaken (with Israel’s simultaneous
Armed Intervention in the 1956 occupation of the Sinai Peninsula) in response to the nationalization of the
Suez Canal Crisis: The Legal Advice
Tendered to the British Government,
Suez Canal Company by the Egyptian Government.
ICLQ 37 (1988), 773. SC Res. 118
of 13 October 1956, UN Doc. S/
3675, laid down the requirements for Decolonization and change in the composition of the
a satisfactory settlement of the
dispute and the future status of the international community
Canal.
119 See H.-J.Uibopuu, Socialist The composition of the international community had already started to change
Internationalism, EPIL 9 (1986),
347– 50; S.v.Schorlemer, Blocs and
immediately after the Second World War. The Soviet Union created the ‘socialist
Groups of States, in Wolfrum bloc’ with the German Democratic Republic, Poland, Bulgaria, Hungary,
UNLPP I, 69–77.
120 See A.Bleckmann,
Romania and Czechoslovakia under its hegemony, joined by the more
Decolonization, EPIL I (1992), 972– independent Yugoslavia.119 But perhaps more important for the structural
6; W.Morvay, British Territories, ibid.,
976–83; A. Bleckmann, French
transition of the international legal system has been the process of
Territories, ibid, 986–90; decolonization,120 based upon the principle of self-determination laid down
J.G.C.v.Aggelen, Dutch Territories,
ibid., 983–6; F.de Quadros,
in the UN Charter and in the common Article 1 of the two 1966 International
Decolonization: Portuguese Human Rights Covenants.121 The colonial empires of Britain, France, Belgium,
Territories, ibid., 990–3; M.A.Ajomo,
International Law, The United
the Netherlands, Portugal and Italy, often confronted with liberation
Nations and Decolonization, in movements,122 eroded with the political independence, for example, of Syria
E.G.Bello/B.A.Ajibola (eds), Essays
in Honour of Judge Taslim Olawale
(1945), Lebanon (1946), India and Pakistan (1947), Israel and Burma (1948),
Elias, 1992, 77–92; P.Kunig, Indonesia (1949), Libya (1951), Tunisia, Morocco, Sudan and Ghana (1956),
Decolonization, in Wolfrum UNLPP
I, 390–7.
Malaya (1957) and Guinea (1958). The decolonization process was basically
121 See Chapter 19 below, 326–40. completed by the 1960s, after the landmark of the adoption by the UN General
122 K.Ginther, Liberation
Movements, EPIL 3 (1982), 245–9.
Assembly in 1960 of the Declaration on the Granting of Independence to
See Chapters 3, 104–5 and 19, Colonial Countries and Peoples.123 The increase in the number of states to
336–8 below.
123 GA Res. 1514 (XV) of 14
about 130 by the end of the 1960s, almost half of which were newly
December 1960, text in Brownlie independent states, had a profound impact on the international system in
BDIL, 307. See Chapter 19 below,
327.
general and the operation of international organizations in particular.
124 D.Bindschedler-Robert, Korea, At the beginning, the United Nations had remained under the control of
EPIL 12 (1990), 202–8; S.Brammer,
Conflicts, Korea, in Wolfrum UNLPP
the West, which still commanded a majority of the seats in the General
I, 278–85. See Chapter 22 below, Assembly. Thus, it was not difficult to make the Korean War,124 the Soviet
391–3.
Union being temporarily absent in the Security Council because of the dispute
126 On the ‘Uniting for Peace’ on the representation of China,125 at least pro forma a United Nations
Resolution, see Chapter 22 below,
392–3.
operation.126 The independence of numerous new states in Asia and Africa
127 See Chapter 15 below, 225–8. changed the whole scenario and the majority in the General Assembly and
128 For a critical analysis see, N.
Harris, The End of the Third World.
the assemblies of other international organizations shifted to an alliance
Newly Industrializing Countries and between the block of communist countries and the new states of the so-
the Decline of an Ideology, 1986.
See also M.S.Rajan/V.S.Mani/
called Third World. However, Western states retained their dominant
C.S.R.Murthy, The Nonaligned and position in the Security Council and in the relevant international financial
the United States, 1987;
A.A.Fatouros, Developing States,
institutions, such as the World Bank and the International Monetary Fund,
EPIL I (1992), 1017–24; R.Heuser, due to their economic power where weighted voting applied according to
Bandung Conference (1955), ibid.,
340–2; J.Betz, Developing
the share of financial contribution.127 Under the leadership of the United
Countries, in Wolfrum UNLPP I, States the Western states also remained dominant in the international system
398–406 and Chapter 15 below,
233–40.
in military and political terms.
Attitudes of Third World states towards international law

It is still much less easy to generalize about the so-called Third World128 states
of Africa, Asia and Latin America than it once was to generalize about the
former bloc of communist states controlled by the Soviet Union. The
129 See Wang Tieya, The Third World
newly independent states, which organized themselves as non-aligned and International Law, in Macdonald/
countries between East and West in the Group of 77 formed during Johnston (eds), 1983, op. cit., 955 et
UNCTAD I in 1964, do not form a bloc in any real sense. They have no seq.; M.Schweitzer, New States and
International Law, EPIL 7 (1984), 349–
common ideology. Their governments vary from the far right to the far 53; F.E.Synder/S.Sathirathai (eds), Third
left of the political spectrum. There are also considerable cultural and World Attitudes Toward International
economic differences. However, there are certain facts which are true of Law: An Introduction, 1987; Harris CMIL,
18–21; M.Kusuma-Atmadja, The
the vast majority of states in the South, and these facts tend to make most Contribution of New States to the
of those states adopt a distinctive attitude towards international law. Development of International Law, Santa
Clara LR 32 (1992), 889–910;
Most developing countries were under alien rule during the formative M.Shahabuddeen, Developing Countries
period of international law, and therefore played no part in shaping that and the Idea of International Law, in
law. Occasionally their leaders argue that they are not bound by rules Macdonald (ed.), 1994, op. cit., 721–36;
M.Bedjaoui, La visión de las culturas no
which they did not help to create. However, this argument is used only occidentales sobre la legitimidad del
in relation to rules which go against the interests of the new states, and derecho international contemporáneo,
the argument that those states played no part in shaping the rules is only Anu. DI 11 (1995), 23–62.
a subsidiary argument designed to strengthen the main contention that 131 See Chapter 12 below, 176–84.
the rules are outmoded. Developing states have never dreamt of rejecting 132 See Chapter 15 below, 233–5.
all rules of international law which were laid down before they became 134 See Chapter 13 below, 207–8.
independent; to do so would mean rejecting many rules which operate 135 See Chapter 15 below, 233–5, 239–40.
to their advantage. The necessity of international law itself as a legal
system regulating intercourse between states was accepted.129
Most countries in the South are poor (with a few exceptions, such as
some of the oil-exporting countries and the ‘New Tigers’ in the Far East)
and are anxious to develop their economies. Those which wished to
develop their economies along socialist lines were therefore in the past
opposed to the traditional rule of international law which forbids
expropriation of foreign-owned property without compensation; but
other Third World countries showed themselves prepared to accept the
traditional rule as a means of encouraging foreign private investment.130
This once fervently argued issue in North-South relations has now lost
much of its former significance. The economic interests of developing
countries also affect their attitudes to other rules of international law;
for instance, if their fishing fleets are dependent on local fisheries, this
naturally influences their position on the law of the sea, and some of
them have tried to gain exclusive rights to local fisheries by claiming a
wide territorial sea, exclusive fishing zone, or exclusive economic zone.131
Since 1973 Third World states have confronted the richer states more
pressingly with their problems of poverty and economic development.
Not surprisingly, the UN General Assembly and other assemblies of
international organizations became their main forums to ventilate claims
for a ‘New International Economic Order’,132 a ‘New International
Communication Order’ (which was one of the reasons why the United
States and the United Kingdom left UNESCO), the application of the
so-called ‘common heritage of mankind’ principle to the benefits of deep-
sea mining133 and the use of outer space,134 and other mechanisms and
concepts to attempt to change international law and to effect the
recognition of a legal obligation of industrialized states to transfer
technology and financial resources to the South. On the whole, Western
states have not accepted these demands; they have helped the economic
development of poorer states in many ways, but are usually reluctant to
recognize or undertake any legal obligation to help poorer states.135
Moreover, many developing states have a feeling of resentment about

past exploitation, real or imagined. That is one reason why they usually
138 See Chapter 19 below, 326ñ340. claim that they have not succeeded to obligations accepted on their behalf
by the former colonial powers before they became independent.136 Almost
141 See Chapter 3 below, 52ñ4. all of them showed themselves as strongly opposed to all remaining forms
142 For example, concerning the
continental shelf, see Chapter 12
of colonialism and apartheid,137 although their reactions to violations of
below, 191ñ3. the principle of self-determination in other contexts are much weaker.138
143 A.Carty, The Decay of
International Law? A Reappraisal of
For the reasons stated above, developing countries often feel that international
the Limits of Legal Imagination in law sacrifices their interests to those of Western states. They therefore demand
International Affairs, 1986.
144 R.Wolfrum, International Law of
changes in the law. Unfortunately, if there is no consensus, it is often difficult to
Cooperation, EPIL II (1995), 1242ñ7. change international law without breaking it. States may refuse to alter a treaty
145 See M.Lachs, Legal Framework
of an International Community,
unless they are forced to do so. States which are dissatisfied with an existing
Emory ILR 6 (1992), 329ñ37; rule of customary law may start following a new custom, but, until the new
H.Mosler, International Legal
Community, EPIL II (1995), 1251ñ5.
custom is widely established, they may be denounced as law-breakers by states
following the old custom.139 One solution for this problem has been the
multilateral treaty; conferences called to draw up a treaty codifying the existing
law can slip imperceptibly into amending the law.140 Another solution favoured
by developing countries has been to try to use the United Nations General
Assembly as if it were a legislature; but the General Assembly is not really a
legislature, and it is doubtful if its resolutions can be used as evidence of
international law against states which vote against them.141
Nevertheless, major changes in international law have occurred since 1945.
Western states were anxious not to drive Third World states into the arms of
communist states, and have therefore agreed to many of the alterations sought
by the non-aligned countries. Most of the rules which developing countries
used to regard as contrary to their interests have changed, or are in the process
of being changed. Similarly, when the interests of Western states change, such
states are often just as ready as other states to abandon the old rules and to
replace them with new rules which are more in keeping with their own
interests.142 Modern international law is not static, but has a dynamic nature
and is in a continuous process of change. The accusation that international
law is biased against the interests of Third World states is, on the whole, no
longer true.
Universality and the challenge to the unity of international law

In the historical process of the transition from the classical system to the
modern system, international law definitely lost its European character and
was extended from a limited club of nations to a global system now covering
some 185 states which are very heterogeneous entities in cultural, economic
and political terms. The basic question ever since has been whether a truly
universal system of law is possible at all under the conditions of a divided
world with such deep cleavages in values, interests, and perceptions. Writers
have frequently found that international law is in a ‘crisis’, or has entered
into ‘decay’.143
At least with respect to the basic normative framework, after 1945
international law entered into a new phase aiming at restricting the unfettered
right of states to go to war and, in addition, transforming the previous
mere coordination of sovereign states into a system of cooperation
and mutual benefit.144 The concept of the ‘international legal community’145

emerged in connection with two other basic concepts of international 147 See G.Jaenicke, International
law— jus cogens146 and international public order147 —both referring to Public Order, EPIL II (1995), 1348ñ51.
principles and rules of international law with a higher legal status than 149 See Chapter 3 below, 60ñ2.
the other parts of international law. There were other significant changes 150 See Chapters 6, 100ñ4, 14, 209ñ21
and 20, 342ñ63 below.
in the international legal system after 1945. The main feature mostly 151 M.M¸nchau, International Relations,
emphasized is the shift from coexistence to cooperation of states, not East-West, in Wolfrum UNLPP II, 771ñ
7. See also W.M.Reisman, International
only to achieve international peace and security, but also to further social Law after the Cold War, AJIL 84 (1990),
and economic goals. This is reflected in the proliferation of international 859ñ66; E.McWhinny et al. (eds), From
Coexistence to Cooperation:
organizations, both global and regional, now numbering about 500 and International Law and Organization in
active in a broad variety of fields, which appeared within a relatively the Post-Cold War Era, 1991; G.Abi-
Saab, A ëNew World Orderí? Some
short time as a new category of international legal subjects.148 It was Preliminary Reflections, Hague YIL 7
primarily in the social and economic field in which the United Nations (1994), 87ñ94.
152 J.Betz, International Relations, North-
and its specialized agencies were able to make some progress. Connected South, in Wolfrum UNLPP II, 778ñ88.
with this extension of the scope of activity was the enhanced process of 153 See Chapter 22 below, 391, 395ñ
415, 423ñ30.
the codification of international law.149 154 Lukashuk, The United Nations and
Another new development after 1945, as compared with classical Illegitimate Regimes: When to Intervene
to Protect Human Rights, in L.F.
international law, has been a stronger recognition of the position of the Damrosch/D.J.Scheffer (eds), Law and
individual. While previously the individual was considered a mere ‘object’ Force in the New International Order,
1992, 143; T.M.Franck, Intervention
of international regulations adopted by sovereign states, more room has Against Illegitimate Regimes, ibid., 159;
been given to the thought of upgrading the status of human beings in A.-M.Burley, Commentary on
Intervention Against Illegitimate
international law. This is reflected in the development of rules on the Regimes, ibid., 177; V.Nanda,
international protection of refugees, the codification of human rights on Commentary on International
Intervention to Promote the Legitimacy
the global and regional level following the Universal Declaration of of Regimes, ibid., 181. See in this
Human Rights, proclaimed by the UN General Assembly in 1948, and connection also on the entitlement to
democracy, to be increasingly promoted
the advancement of international humanitarian law in armed conflict and protected by collective international
with the four Geneva Red Cross Conventions of 1949 and the two processes, T.M.Franck, The Emerging
Right to Democratic Governance, AJIL
Additional Protocols of 1977.150 86 (1992), 46 et seq.; J.Crawford,
The end of the East-West conflict,151 apart from moving North-South Democracy and International Law, BYIL
64 (1993), 113ñ34.
issues152 more to the forefront, has led to the resurgence of nationalism, 155 See Chapter 14 below, 220ñ1.
to the rise of ethnic conflict and civil wars in various parts of the world, 156 D.Copp/J.Hamption/J.Roemer
(eds), The Idea of Democracy, 1995.
and to the hitherto unknown activism of the UN Security Council.153 In 157 F.Fukuyama, The End of History?,
Western legal literature the end of the Cold War has provoked a The National Interest, 1989, no. 16, 3ñ18.
controversy on the legality of ‘democratic intervention’,154 intervention
to support or establish a democratic system of government in another
state against ‘illegitimate regimes’, in connection with the discussion on
humanitarian intervention.155 The general proposition of this intervention
theory is that there is a necessary structural link between democracy,156
as it developed in Western constitutional history, and the effective
guarantee of human rights. The problem is, of course, whether Western
concepts, including those on the market economy and on human rights,
can prevail throughout the world in the face of Asian, African and Islamic
perceptions which are different for reasons of history, society and culture.
Moreover, after the wall in Berlin fell, writers, such as Francis
Fukuyama,157 declared the ‘end of history’ and the victory of Western
democracy and capitalism. But, from a different perspective, perhaps
the USSR and the United States were and are only experimental states in
the long course of the history of a rather mixed international community.
Western civilization is certainly not the only form of civilization in the
158 S.P.Huntington, The Clash of

Civilizations?, FA 72 (1993), 22–49.
world, and its values and regulatory systems, including its law, are not
159 See E.Sakakibara, The End of necessarily appropriate or acceptable in other parts of the globe. On the
Progressivism, FA 74 (1995), 8–14.
160 See EPIL 6 (1983), dedicated to
other hand, whether Samuel Huntington’s prediction158 that ‘civilization
Regional Cooperation, Organizations identity will be increasingly important in the future, and the world will be
and Problems; S.González Gálvez,
The Future of Regionalism in an
shaped in large measure by the interaction among seven or eight civilizations’
Asymmetrical System, in Macdonald/ and will lead to a clash of civilizations in the next century, remains to be
Johnston (eds), 1983, op. cit., 661–
83; R.Wolfrum (ed.), Strengthening
seen.159 Such predictions are not new (and are often false) in history, as we
the World Order, Universalism versus know from Spengler’s ‘Untergang des Abendlandes’.
Regionalism, Risks and Opportunities Nevertheless, also from a legal perspective, there is no doubt that the
of Regionalization, 1990; J.I.Charney,
Universal International Law, AJIL 87 question of the universal nature of international law has been reinforced
(1993), 529– 51; A.Hurrell, Explaining not only by theoretical debate but also by the actual strong tendencies
the Resurgence of Regionalism in
World Politics, RIS 21 (1995), 331–
towards economic and political regionalism in the international system.160
58; C.Schreuer, Regionalization, in The answer to this question is not easy and needs to take into acount the
Wolfrum UNLPP II, 1059–67; content of contemporary international law in its various fields and the
Schreuer, Regionalism v.
Universalism, EJIL 6 (1995), 477–99. characteristics of the international law-making process. As a starting-point,
161 UNGA Res. 2625 (XXV) of 24 however, it may be observed that there is at least universal agreement on
October 1970, text in Brownlie BDIL, some basic principles of international law, as laid down in the Friendly
36; see V.S.Mani, Basic Principles
of Modern International Law. A Relations Declaration, which after a long process of attempting to clarify
Study of the United Nations Debates the meaning of the United Nations Charter was adopted by all states by
on the Principles of International
Law Concerning Friendly Relations
consensus in 1970.161 These principles include:
and Cooperation Among States,
1993; V.Lowe/C.Warbrick (eds), The 1 the prohibition of the threat or use of force by states against the territorial
United Nations and the Principles of
International Law—Essays in integrity or political independence of any state, or in any other manner
Memory of Michael Akehurst, 1994 inconsistent with the purposes of the Charter;
(with contributions by I.Sinclair, Ch.
Gray, J.Merrills, V.Lowe,
2 the peaceful settlement of disputes between states in such a manner that
D.McGoldrick, A. Boyle, international peace and security and justice are not endangered;
D.Freestone, A.James, P. 3 the duty not to intervene in matters within the domestic jurisdiction of
Thornberry, C.Warbrick and
G.White); G.Arangio-Ruiz, Friendly any state, in accordance with the Charter;
Relations Resolution, EPIL II (1995), 4 the duty of states to cooperate with one another in accordance with the
485–90. Charter;
162 See B.Simma, Editorial, EJIL 3
(1992), 215; P.Allott et al., Theory 5 the principle of equal rights and self-determination of peoples;
and International Law: An 6 the principle of sovereign equality of states; and
Introduction, 1991.
163 See text above, 15–17. On A.
7 the principle that states shall fulfil in good faith the obligations assumed
Verdross, see the contributions by B. by them in accordance with the Charter.
Simma, A.Truyol y Serra, B.Conforti,
A. Carty and I.Seidl-Hohenveldern in
EJIL 6 (1995), 32–115. On
D.Anzilotti, see R.Ago, P.-M.Dupuy, New developments in theory
G.Gaja, J.M.Ruda and A.Tanca in
EJIL 3 (1992), 92 et seq. On
G.Scelles, see H.Thierry, A. Cassese, Finally, it should at least be briefly mentioned that there have been some
L.Condorelli, R.J.Dupuy and A.Tanca interesting new developments in theory during the past decade.162 The old schools
in EJIL 1 (1990), 193 et seq.
164 See M.S.McDougal/W.M. of natural law and positivism163 are still with us, and it seems that the latter
Reisman, International Law in today forms the basis of mainstream thinking in international law in one form
Policy-Oriented Perspective, in
Macdonald/ Johnston (eds), 1983, or another. In addition, the ‘policy-orientated’ New Haven school founded by
op. cit., 103–29; M.McDougal and the Yale professor Myres S.McDougal164 gained widespread influence at the
Associates, Studies in World Public
Order, 1987; G.L.Dorsey, The height of the Cold War even outside the United States. This perspective regards
McDougal-Laswell Proposal to Build international law as a constant flow of authoritative decision-making in which
a World Public Order, AJIL 82
(1988), 41–50; M.S.McDougal, The legal argument is only one factor among many others; therefore, it has been
Dorsey Comment: A Modest criticized by positivist views (especially in Europe) as abandoning the very
Retrogression, ibid., 51–7; H.D.
Lasswell/M.S.McDougal, concept of law and legal rules. Often, however, in deciding a practical case in
Jurisprudence for a Free Society, 2 international law, such theories are not much different in their results.
Vols, 1992.
In the West, a new school of ‘Critical Legal Studies’, which started in 165 See D.Kennedy, A New Stream of
International Law Scholarship, Wis.
the United States, has emerged, vigorously challenging traditional ILJ 7 (1988), 6 et seq.;
positivist perceptions of international law from a methodological point M.Koskenniemi, From Apology to
Utopia: The Structure of International
of view based on analytical language philosophy and a hermeneutical Legal Argument, 1989; Koskenniemi,
theory of law.165 The ‘deconstruction’ of international legal argumentation The Politics of International Law, EJIL
1 (1990), 4ñ32; A.Carty, Critical
by these critical legal scholars denies that, in view of its indeterminacy, International Law: Recent Trends in
inconsistency and lack of coherence, international law has a distinct the Theory of International Law, EJIL 2
(1991), 66 et seq.; O.de Schutter, Les
existence of its own. Other modes of inquiry, inspired by the writings of critical legal studies au pays du droit
Thomas M. Franck, address basic issues of the ‘legitimacy’ and ‘fairness’ international public, Droit et Soc. 22
(1992), 585ñ 605; G.Dencho, Politics
of the international legal system from a different angle.166 In addition, or Rule of Law: Deconstruction and
some more Utopian theories have entered the market-place of ideas167 Legitimacy in International Law, EJIL 4
(1993), 1ñ14.
and there is also now a claim to a ‘feminist approach’ to international 166 See T.M.Franck, The Power of
law.168 Another interesting development to be mentioned is the effort Legitimacy Among Nations, 1990; T.M.
Franck/S.W.Hawkins, Justice in the
recently being made to attempt to bridge the gap between international International System, Mich. JIL 10
law theory and international relations theory.169 (1989), 127; J.E.Alvarez, The Quest for
Legitimacy: An Examination of the Power
At least for the time being, the Marxist-Leninist theory of international of Legitimacy Among Nations, NYUJILP
law170 has vanished from the arena and has become of mere historical 24 (1991), 199ñ267; Franck, Fairness in
International Law and Institutions, 1995.
interest. After the end of the Cold War and the dissolution of the Soviet See also D.D.Caron, The Legitimacy of
Empire, there has been a change in attitude in the former Communist the Collective Authority of the Security
Council, AJIL 87 (1993), 552ñ88; Caron,
states towards international law in general, the precise implications and Governance and Collective
durability of which, however, remain to be seen.171 The same applies to Legitimization in the New World Order,
Hague YIL 6 (1993), 29ñ44.
the awakening of interest in international law in China.172 To which 167 See the inspiring writings by P.
extent Islamic perceptions of international law are developing into a Allott, Eunomia. New Order for a New
World, 1990; Allott, Reconstituting
separate direction is also an open and interesting question.173 HumanityóNew International Law, EJIL
The output of theory, on the abstract level, is certainly of academic 3 (1992), 219ñ52.
168 See, for example, H.Charlesworth/
interest for understanding the nature of the international legal system, C.Chinkin/S.Wright, Feminist
but it has limited relevance for the actual practice of states and the Approaches to International Law, AJIL
85 (1991), 613ñ45; D.G.Dallmeyer (ed.),
problems that have to be solved in daily life. As the enlightened Dutch Reconceiving Reality: Women and
scholar Röling noted in 1960: International Law, 1993.
169 See G.Doeker, Internationale
Beziehungen und Vˆlkerrecht als
In all positive law is hidden the element of power and the element Gegenstand der Forschung und Lehre,
AVR 19 (1980ñ1), 401 et seq., with
of interest. Law is not the same as power, nor is it the same as references to the Anglo-American
interest, but it gives expression to the former power-relation. literature which is traditionally much
more open to such questions; K.W.
Law has the inclination to serve primarily the interests of the Abott, Modern International Relations
powerful. ëEuropeaní international law, the traditional law of Theory: A Prospectus for International
Lawyers, Yale JIL 14 (1989), 335ñ411;
nations, makes no exception to this rule. It served the interest of A.-M.Slaughter Burley, International Law
prosperous nations.174 and International Relations Theory: A
Dual Agenda, AJIL 87 (1993), 205ñ 39;
S.V.Scott, International Law as Ideology:
The real question is, therefore, which interests does international law Theorizing the Relationship between
International Law and International
now serve in a much more expanded, diverse, but increasingly Politics, EJIL 5 (1994), 313ñ25; D.Frei,
interdependent world, and the answer requires a closer look at various International Relations, EPIL II (1995),
1359ñ64; A.C.Arend/ R.J.Beck/
branches of the ‘law in action’ in international relations in the following R.D.V.Lugt (eds), International Rules.
chapters. Approaches from International Law and
International Relations, 1996;
V.Rittberger (ed.), Regime Theory and
International Relations, 1993; C.Brown,
International Relations Theory: New
Normative Approaches, 1992. See
further C.A.Kiss/D. Shelton, Systems
Analysis of International Law: A
Methodological Inquiry, NYIL 17 (1986),
45ñ74.
170 See text above, 23. For a recent International Law: Soviet Doctrines and Violence: Islamic Law and
analysis from a Marxist point of view see Practice in the Post-Tunkin Era, CYIL International Terrorism, GYIL 31
B.S.Chimni, International Law and World 28 (1990), 309–37; W.E.Butler (ed.), (1988), 307; D.A. Westbrook, Islamic
Order: A Critique of Contemporary Perestroika and International Law, International Law and Public
Approaches, 1993. 1990; A.Carty/ G.Danilenko (eds), International Law: Separate
171 See Harris CMIL, 21–2; J.W.E.Butler Perestroika and International Law: Expressions of World Order, Virginia
(ed.), International Law and the Current Anglo-Soviet Approaches to JIL 33 (1993), 819–97; F.Malekian,
International System, 1987; International Law, 1990. The Concept of Islamic International
T.Schweisfurth, Das 172 See H.Chun, Chinese Attitudes Criminal Law. A Comparative Study,
Völkergewohnheitsrecht —verstärkt im Toward International Law in the Post- 1994; M.Khadduri, International Law,
Blickfeld der sowjetischen Mao Era, 1978–1987, IL 21 (1987), Islamic, EPIL II (1995), 1236–42. In
Völkerrechtslehre, GYIL 30 (1987), 36; 1127–66; Wang Tieya (1990), op. cit.; 1992 the International Law
Quigley, Perestroika and International Law, R.Heuser, Völkerrechtswissenschaft Association (ILA) established a
AJIL 82 (1988), 788–97; Agora: New und Völkerrechtstheorie in der Committee on Islamic Law within
Thinking by Soviet Scholars,AJIL 83 Volksrepublik China (1979–88), ZaöRV International Law.
(1989), 494–518 (with contributions by 49 (1989), 301–34. 174 B.V.A.Röling, International Law
R.A.Mullerson and I.I.Lukashuk); 173 See, for example, A.A.Ana’im, in an Expanded World, 1960, 15.
E.McWhinney, The ‘New Thinking’ in Islamic Ambivalence to Political
Soviet
3 Sources of international law
The word ‘source of law’ (‘source de droit’, ‘Rechtsquelle’) has a variety 1 Harris CMIL, 23–68; Restatement
(Third), Vol. 1, paras. 102–3, 24–39;
of interpretations. 1 The English legal philosopher H.L.A.Hart C. Dominice, Methodology of
distinguishes between its use in a ‘material’ or ‘historical sense’ and in International Law, EPIL 7 (1984), 334
et seq.; R. Monaco, Sources of
a ‘formal’ or ‘legal’ sense.2 In the first non-legal sense it refers to a International Law, ibid., 424 et seq.;
causal or historical influence explaining the factual existence of a given B.Simma/P.Alston, The Sources of
Human Rights Law: Custom, Jus
rule of law at a given place and time, for example, to show that a Cogens, and General Principles, AYIL
certain contemporary rule of Dutch law may originate from Roman 12 (1988/9), 82–108; C.Sepúlveda,
Methods and Procedures for the
law, or to state that the development of labour law has resulted from Creation of Legal Norms in the
the political action taken by trade unions. In the legal sense, the term International System of States: An
Inquiry into the Progressive
means the criteria under which a rule is accepted as valid in the given Development of International Law in
legal system at issue. These criteria distinguish binding law from legally the Present Era, GYIL 33 (1990), 432;
O. Schachter, International Law in
non-binding other social or moral norms and the law de lege lata (the Theory and Practice, 1991, Chapter III;
law as it currently stands) from the law de lege ferenda (the law as it U. Fastenrath, Lücken im Völkerrecht,
1991; E.Riedel, Standards and
may be, or should be, in the future).3 In this sense, the term ‘source’ Sources. Farewell to the Exclusivity of
has a technical meaning related to the law-making process and must the Sources Triad in International
Law?, EJIL 2 (1991), 58–84;
not be confused with information sources, research sources or E.Frangou-Ikonomidou (ed.), Sources
bibliographies on international law.4 of International Law, 1992;
U.Fastenrath, Relative Normativity in
In developed national legal systems there are definite methods of International Law, EJIL 4 (1993), 305–
identifying the law, primarily by reference to the constitution, legislation 40; G.Tunkin, Is General International
Law Customary Law Only?, ibid., 534–
(statutes) and judicial case law. In the decentralized international legal 41; H.H.G.Post, Some Curiosities in
system, lacking a hierarchical structure,5 the problem of finding the law the Sources of the Law of Armed
Conflict Conceived in a General
is much more complicated. There is no authority to adopt universally International Legal Perspective, NYIL
binding legislation6 and no compulsory jurisdiction of international courts 25 (1994), 83–118.
2 H.L.A.Hart, The Concept of Law
and tribunals without the consent of states. In this system the same 1961, 246–7. On the meaning of
subjects of international law7 that are bound by international rules and ‘sources’ see also R.Y.Jennings,
International Law, EPIL 7 (1984), 284;
principles have created them themselves. I.Brownlie, Principles of Public
The most important source of international law for centuries was International Law, 4th edn 1990, 1–3,
discussing the common distinction
customary law, evolving from the practice of states.8 The recent attempt between ‘formal’ sources (legal
to codify international law and the conclusion of multilateral treaties procedures and methods for creating
binding rules) and ‘material’ sources
in many important areas, such as diplomatic and consular relations,9 (providing evidence of the content of
the law of war10 or the law of the sea,11 have sought to clarify the law rules in the sense of substantive law)
which is not clearly applicable in
and to establish universally accepted norms. But customary law has international law.
still retained its predominance over treaty law or other sources in many 3 On the need to distinguish clearly
between the lex lata and mere
other areas, such as, for example, state immunity 12 or state propositions on the lex ferenda see R.Y.
responsibility.13 The changes in international society since 1945 have Jennings, An International Lawyer Takes
Stock, ICLQ 39 (1990), 513–29, 514.
led to basic disputes on the sources of international law and it must be 4 An excellent guide to the literature in
noted at the outset that they have become an area of considerable this respect is Public International Law
—A Current Bibliography of Books and
theoretical controversy. In particular, the two main traditional elements, Articles, published regularly by the Max
custom and treaties, are now often difficult to distinguish clearly. As Planck Institute for Comparative Public
Law and International Law in
R.Jennings put it in 1981: Heidelberg, which evaluates over 1400
journals, in addition to other collected
36 SOURCES OF INTERNATIONAL LAW
works, and also lists newly

published books on all areas of
I doubt whether anybody is going to dissent from the proposition
public international law. that there has never been a time when there has been so much
5 See Chapter 1 above, 3ñ5.
6 See O.Schachter, The Nature and
confusion and doubt about the tests of the validityóor sourcesóof
Process of Legal Development in international law, than the present.14
International Society, in R.St.J.
Macdonald/D.M.Johnston (eds), The
Structure and Process of Article 38(1) of the Statute of the International Court of Justice 15
International Law, 1983, 745ñ808;
G.M.Danilenko, Law-Making in the
provides:
International Community, 1993;
K.Skubiszewski, International
Legislation, EPIL II (1995), 1255ñ
The Court, whose function is to decide in accordance with
62;. international law such disputes as are submitted to it, shall apply:
108 below. (a) international conventions, whether general or particular, es-
8 See R.Bernhardt, Customary
International Law, EPIL I (1992), tablishing rules expressly recognized by the contesting States;
898ñ905. (b) international custom, as evidence of a general practice ac-
10 See Chapter 20, 342ñ63 below. cepted as law;
11 See Chapter 12 below, 173ñ5. (c) the general principles of law recognized by civilized nations;
13 See Chapter 17 below, 254ñ72. (d) Öjudicial decisions and the teachings of the most highly
14 R.Y.Jennings, What is qualified publicists of the various nations, as subsidiary
International Law and How Do We
Tell When We See It?, ASDI 37 means for the determination of rules of law.
(1981), 59ñ88, at 60.
15 Text in Brownlie BDIL, 438.
16 On the practice of the ICJ see M. This provision is usually accepted as constituting a list of the sources of
Mendelson, The International Court international law.16 Some writers have criticized it on the grounds that it
of Justice and the Sources of
International Law, in V.Lowe/ does not list all the sources of international law, or that it includes aspects
M.Fitzmaurice (eds), Fifty Years of which are not genuine sources, but none of the alternative lists which have
the International Court of Justice,
1996, 63ñ89.
been suggested has won general approval. It is therefore proposed to examine
17 Op. cit. See R.Bernhardt, the sources listed in the Court’s Statute before considering other possible
Treaties, EPIL 7 (1984), 459ñ64. sources of international law.
Further literature is listed in Chapter
9 below, 130, which deals with the
law of treaties.
Treaties
The Statute of the International Court of Justice speaks of ‘international

conventions, whether general or particular, establishing rules expressly
recognized by the contesting states’.17 The word ‘convention’ means a treaty,
and that is the only meaning which the word possesses in international law,
and in international relations generally. This is a point worth emphasizing,
because students have been known to confuse conventions with conferences,
or to mix up conventions in international law with conventions of the
constitution in British constitutional law. Other terms used as a synonym
for treaties, or for particular types of treaties, are agreement, pact,
understanding, protocol, charter, statute, act, covenant, declaration,
engagement, arrangement, accord, regulation and provision. Some of these
words have alternative meanings (that is, they can also mean something
other than treaties), which makes the problem of terminology even more
confusing.
Treaties are of growing importance in international law. The practice of
publishing collections of treaties concluded by a certain state or group of
states commenced during the second half of the seventeenth century. The
most important collection, under various titles, until the Second World War,
was started by G.F.von Martens in 1771 with his ‘Recueil des principaux
traités’. Since 1945, in accordance with Article 102 of the UN Charter,
TREATIES 37
more than 33,000 treaties have been registered with the United Nations, 18 United Nations Treaties Series
(UNTS); for a good reference work see
several thousand of which are multilateral.18 As collectivism has replaced M.J.Bowman/D.J.Harris (eds),
laissez-faire, a large number of questions have become subject to Multilateral Treaties: Index and Current
Status, 1984 and 10th cumulative
governmental regulation—and to intergovernmental regulation when supplement, 1993, with regular
they transcend national boundaries. Modern technology, communications cumulative supplements. See also L.
and trade have made states more interdependent than ever before, and Wildhaber, Treaties, Multilateral, EPIL 7
(1984), 480–4; C.Parry (ed.), The
more willing to accept rules on a vast range of problems of common Consolidated Treaty Series (CTS),
concern— extradition of criminals, safety regulations for ships and 1648– 1918 (annotated); Hudson,
aircraft, economic aid, copyright, standardization of road signs, International Legislation (1931–1950);
C.Parry (ed.), Index to British Treaties
protection of foreign investment, environmental issues and so on. The (1101–1918); United Kingdom Treaties
rules in question are usually laid down in treaties, with the result that Series (UKTS) (from 1892); League of
Nations Treaty Series (LNTS).
international law has expanded beyond all recognition in the last 140 International Legal Materials (ILM),
years (although it must be pointed out that most of the rules are too which regularly publishes not only
specialized to be dealt with in ordinary textbooks on international law). treaties but also other important
documents relating to international law,
Treaties are the major instrument of cooperation in international is also very useful.
relations, and cooperation often involves a change in the relative positions 19 See Chapter 15 below, 237.
of the states involved (for example, rich countries give money to poor 20 See V.de Visscher, Problèmes
d’interpretation judicaire en droit
countries). Treaties, therefore, are often an instrument of change—a point international public, 1963, 128 et seq.
which is forgotten by those who regard international law as an essentially
conservative force. The general trend, particularly after the Second World
War, has been to enhance the role of treaties in international law-making,
partly in response to increasing interdependence, partly as a solution to
the controversies that exist between diverse groups of states as to the
content and validity of older customary rules.
To some extent treaties have begun to replace customary law. Where
there is agreement about rules of customary law, they are codified by
treaty; where there is disagreement or uncertainty, states tend to settle
disputes by ad hoc compromises—which also take the form of treaties.
For example, capital-exporting countries have concluded some 1000
bilateral treaties promoting and protecting foreign investment to clarify
the relevant legal framework.19
Law-making treaties and ‘contract treaties’

Treaties are the maids-of-all-work in international law. Very often they
resemble contracts in national systems of law, but they can also perform
functions which in national systems would be carried out by statutes,
by conveyances, or by the memorandum of association of a company.
In national legal systems, legislative acts of parliament are regarded as
sources of law, but contracts are not; contracts are merely legal
transactions. (Contracts create rights and duties only for the contracting
parties, who are very few in number, and it is generally agreed that a
‘source of law’ means a source of rules which apply to a very large
number of people.) Some writers have tried to argue that treaties should
be regarded as sources of international law only if they resemble national
statutes in content, that is, if they impose the same obligations on all
the parties to the treaty and seek to regulate the parties’ behaviour
over a long period of time. Such treaties are called ‘law-making treaties’
(traités-lois) and their purpose is to conclude an agreement on universal
substantive legal principles (i.e. human rights treaties, Genocide
Convention).20 According to this theory, ‘contract-treaties’ (traités-
contrat), that is, treaties which resemble contracts (for instance, a

Another aspect where the distinction
treaty whereby one state agrees to lend a certain sum of money to another
may be relevant is in the state) are not sources of law, but merely legal transactions.
interpretation and application of the
particular treaty, see Bernhardt
However, the analogy between national statutes and law-making treaties
(1984), op. cit., 461. See also is misleading for two reasons. First, in national systems of law anyone who
E.Raftopoulos, The Inadequacy of
the Contractual Analogy in the Law
is contractually competent (i.e. anyone who is sane and not a minor) can
of Treaties, 1990. enter into a contract, but parliamentary legislation is passed by a small
22 See Chapters 5, 75–90 and 6,
91–108 below.
group of people. In international law, any state can enter into a treaty,
23 R.Jennings, State Contracts in including a law-making treaty. Secondly, in national systems of law contracts
International Law, BYIL 32 (1961),
156 et seq.; K.-H.Böckstiegel, Der
create rights and duties only for the contracting parties, who are very few in
Staat als Vertragspartner number, whereas statutes of national law apply to a very large number of
ausländischer Privatunternehmen,
1971; D.W.Bowett, State Contracts
people. In international law all treaties, including law-making treaties, apply
with Aliens: Contemporary only to states which agree to them. Normally the parties to a law-making
Developments on Compensation for
Termination or Breach, BYIL 59
treaty are more numerous than the parties to a ‘contract-treaty’, but there
(1988), 49 et seq.; E. Paasivirta, is no reason why this should always be so.
Internationalization and Stabilization
of Contracts versus State
The only distinction between a ‘law-making treaty’ and a ‘contract-treaty’
Sovereignty, BYIL 60 (1989), 315 et is one of content. As a result, many treaties constitute borderline cases,
seq.; M.Sornarajah, International
Commercial Arbitration: The
which are hard to classify. A single treaty may contain some provisions
Protection of State Contracts, 1990; which are ‘contractual’, and others which are ‘law-making’. The distinction
G.v.Hecke, Contracts Between
States and Foreign Private Law
between ‘law-making treaties’ and ‘contract-treaties’ is not entirely useless;
Persons, EPIL I (1992), 814–19; see for instance, a ‘contract-treaty’ is more likely to be terminated by the
also v.Hecke, Contracts Between
International Organizations and
outbreak of war between the parties than a law-making treaty.21 But it is
Private Law Persons, ibid., 812– 14; too vague and imprecise to justify regarding law-making treaties as the
A.F.M.Maniruzzaman, State
Contracts with Aliens. The Question
only treaties which are a source of international law. The better view is to
of Unilateral Change by the State in regard all treaties as a source of law. At any rate, the law of treaties applies
Contemporary International Law,
JIArb. 9 (1992), 141–71;
to both types of treaties.
G.R.Delaume, Transnational
Contracts—Applicable Law and
Settlement of Disputes, 1992. Parties to international treaties and ‘internationalized contracts’
24 P.Fisher, Concessions, EPIL I
(1992), 715–21; A.Z.E.Chiali,
Protection of Investment in the
Only the subjects of international law—states, international organizations,
Context of Petroleum Agreements, and the other traditionally recognized entities22 —can conclude treaties under
RdC 204 (1987–IV), 13–169.
25 The most important arbitration
international law. An international business contract concluded between a
cases since 1929 are listed in v. company based in state A and another enterprise located in state B is subject
Hecke, op. cit.
to one or another national legal system, but it is not a treaty under
international law. Similarly, private law contracts between states, i.e. for
the sale and purchase of goods, are usually concluded under the national
law of one of the parties.
Some interesting problems have arisen in connection with agreements made
between states and foreign corporations,23 especially in the field of oil
concessions,24 permitting a foreign company to explore and exploit oil
resources on the territory of the state. Usually, the parties to such agreements
consent to a certain national legal system governing the contract. But
occasionally, in the case of powerful multinational companies, such contracts
have not been, fully or partially, placed under a national law, but under
international law, general principles of law or only under the provisions of
the contract itself. The reason for concluding such so-called internationalized
contracts is to establish a balance between the parties and prevent the state
party from evading its obligations under the contract by changing its own
internal law. This is mostly secured by an arbitration clause referring disputes
under the agreement to an international body.25 There have been various
CUSTOM 39
26 See Chapter 9 below.

attempts to find a proper legal classification of these internationalized 27 M.Akehurst, Custom as a Source of
contracts, but the practical relevance of the issue has declined in recent International Law, BYIL 47 (1974–5), 1
et seq.; G.M.Danilenko, The Theory of
years, as parties now mostly declare a certain national law to be applicable. International Customary Law, GYIL 31
The law of treaties is dealt with in Chapter 9 below.26 (1988), 9 et seq; M.H.Mendelson, The
Formation of Rules of Customary
(General) International Law, ILA Rep.
1988, 935–59; J.A.Barberis, Réflexions
Custom sur la coutume internationale, AFDI 36
(1990), 9–46; J.Kirchner, Thoughts
about a Methodology of Customary
The second source of international law listed in the Statute of the International Law, AJPIL 43 (1992),
International Court of Justice is ‘international custom, as evidence of a 215–39; Bernhardt (1992), op. cit.,
general practice accepted as law’.27 As confirmed by the ICJ in the 898–905; K.Wolfke, Some Persistent
Controversies regarding Customary
Nicaragua case,28 custom is constituted by two elements, the objective International Law, NYIL 24 (1993), 1–
one of ‘a general practice’, and the subjective one ‘accepted as law’, the 16; Wolfke, Custom in Present
International Law, 2nd edn 1993;
so-called opinio iuris. In the Continental Shelf (Libya v. Malta) case, the O.Elias, The Nature of the Subjective
Court stated that the substance of customary international law must be Element in Customary International
‘looked for primarily in the actual practice and opinio juris of States’.29 Law, ICLQ 44 (1995), 501– 20;
I.M.Lobo de Souza, The Role of State
The definition has given rise to some vexed theoretical questions, such Consent in the Customary Process,
as: How is it possible to make law by practice? And how can something ibid., 521–39; Meron, The Continuing
be accepted as law before it has actually developed into law?30 But it is Role of Custom in the Formation of
International Humanitarian Law, AJIL
nevertheless the established doctrine, accepted by states, international 90 (1996), 238–49.
tribunals and most writers alike. 28 Nicaragua v. USA (Merits), ICJ Rep.
1986, 14, at 97. See Chapters 18, 284,
289 and 19, 311, 317, 319–22 and text
below, 41.
Where to look for evidence of customary law 29 ICJ Rep. 1985, 29. See also
Advisory Opinion on the Legality of the
The main evidence of customary law is to be found in the actual practice Threat or Use of Nuclear Weapons, ILM
of states, and a rough idea of a state’s practice can be gathered from 35 (1996), 809, at 826, para. 64. On the
case see Chapter 20 below, 347–9.
published material—from newspaper reports of actions taken by states, 30 See Restatement (Third), Vol. 1,
and from statements made by government spokesmen to Parliament, to Reporters’ Note to para. 102, at 30.
the press, at international conferences and at meetings of international 31 For example, C.Parry/G.
Fitzmaurice (eds), British Digest of
organizations; and also from a state’s laws and judicial decisions, because International Law, British and Foreign
the legislature and the judiciary form part of a state just as much as the State Papers (1812–1970). On United
executive does. At times the Foreign Ministry of a state may publish States practice see Moore (ed.),
extracts from its archives; for instance, when a state goes to war or Digest of International Law (1906);
Hackworth (ed.), Digest of
becomes involved in a particular bitter dispute, it may publish documents
International Law (1940– 1944);
to justify itself in the eyes of the world. But the vast majority of the M.M.Whiteman (ed.), Digest of
material which would tend to throw light on a state’s practice concerning International Law (1963–1973); State
questions of international law—correspondence with other states, and Department (ed.), Annual Digests of
the advice which each state receives from its own legal advisers—is United States Practice in International
Law (since 1973); M.Nash (Leich)
normally not published; or, to be more precise, it is only recently that (ed.), Cumulative Digest of United
efforts have been made to publish digests of the practice followed by States Practice in International Law
different states.31 As far as the latter are reliable as evidence of the law,32 1981– 1988, Book II, 1994; Foreign
it must also be taken into consideration that such an expensive enterprise Relations of the United States,
Diplomatic Papers, and Papers
is mostly not undertaken in developing countries and that the empirical
Relating to the Foreign Relations of
basis for analytical generalizations, therefore, is in fact rather limited to the United States (since 1861), and
the practice of certain countries. Valuable evidence can also be found in the Restatement (Third). On the
the documentary sources produced by the United Nations.33 practice of France see A.Kiss,
Répertoire de la pratique française en
Evidence of customary law may sometimes also be found in the
matière de droit international public
writings of international lawyers, and in judgments of national and (1962–1972). Furthermore, a number
international tribunals, which are mentioned as subsidiary means for of periodicals provide regular
repertories of national state practice,
the determination of rules of law in Article 38(1)(d) of the Statute of the
for example, AFDI, AJIL, AYIL, AJPIL,
International Court of Justice.34 ASDI, BYIL, CYIL, IYIL, NYIL, RBDI
and ZaöRV.
32 See H.Mosler, Repetorien der

nationalen Praxis in
Similarly, treaties can be evidence of customary law;35 but great care
Völkerrechtsfragen —Eine Quelle must be taken when inferring rules of customary law from treaties,
zur Erschließung des allgemeinen especially bilateral ones. For instance, treaties dealing with a particular
Völkerrechts?, Receuil d’études de
droit international en hommage à subject matter may habitually contain a certain provision; thus, extradition
P.Guggenheim, 1968, 460–89. treaties almost always provide that political offenders shall not be
33 For example, UN Juridical
Yearbook; UN Legislative Series; extradited.36 It has sometimes been argued that a standard provision of
List of Treaty Collections; this type has become so habitual that it should be regarded as a rule of
Cumulative Index of the Treaty
Series; Repertoire of the Practice of customary law, to be inferred even when a treaty is silent on that particular
the Security Council (1946–1951, point. On the other hand, why would states bother to insert such standard
with supplements until 1971);
Repertory of Practice of United
provisions in their treaties, if the rule existed already as a rule of customary
Nations Organs; Report of law? The problem is a difficult one, and one needs to know more about
International Arbitral Awards (RIAA). the intentions of the parties to the treaties in question before one is safe in
34 See text below, 51–2 and cf. also
The Paquete Habana (1900), 175 invoking a standard treaty provision as evidence of customary law. Even
US 677, 700–1. so, the mere existence of identical bilateral treaties does not generally
35 M.E.Villiger, Customary
International Law and Treaties, support a corresponding norm of customary law. At least the network of
1985. bilateral treaties must be widespread before it can amount to state practice
37 Restatement (Third), Vol. 1, para. resulting in customary law.37
102, 27; B.Kishoiyian, The Utility of The case of multilateral treaties is different and may definitely constitute
Bilateral Investment Treaties in the
Formulation of Customary evidence of customary law. If the treaty claims to be declaratory of customary
International Law, NJILB 14 (1994), law, or is intended to codify customary law, it can be quoted as evidence of
327–75.
38 On ratification and entry into customary law even against a state which is not a party to the treaty. This is
force of treaties generally, see so even if the treaty has not received enough ratifications to come into
39 Text in Brownlie BDIL, 388. See force.38 It may be asked why states should be unwilling to ratify a treaty if
Chapter 9 below, 130–46. it merely restates customary law. Explanations include inertia and lack of
40 See Chapters 18, 284 and 19,
311, 317, 319–22 below. parliamentary time (if ratification requires the participation of the legislature,
41 For the opposite case see D.W. as it does in many countries). Moreover, only part of the treaty may codify
Bowett, Treaty Revision in the Light
of the Evolution of Customary customary law, and a state may refuse to ratify because it objects to other
International Law, AJICL 5 (1993), parts thereof.
84–96 and text below, 56–7.
42 See Chapter 2 above, 21–2. Good examples are many (but not all) provisions of the 1969 Vienna
Convention on the Law of Treaties.39 Such a state is not bound by the
treaty, but by customary law; therefore, if it can produce other evidence to
show that the treaty misrepresents customary law it can disregard the rule
stated in the treaty. This possibility is not open to states which are parties to
the treaty, since they are bound by the treaty in their relations with other
parties to the treaty, regardless of whether the treaty accurately codifies
customary law or not. But treaty law and customary law can exist side by
side. In the Nicaragua case, the International Court of Justice held that its
jurisdiction was excluded with regard to the relevant treaty law (in that
case the UN Charter), but nevertheless proceeded to reach a decision on the
basis of customary international law, the content of which it considered to
be the same as that laid down in the Charter (concerning the prohibition of
the use of force).40
Moreover, there is the possibility that customary law may change so as to
conform with an earlier treaty.41 For instance, the Declaration of Maritime
Law issued by the signatory states to the Treaty of Paris 185642 altered certain
rules about the conduct of war at sea. It prohibited privateering, the capture
of enemy goods except contraband on neutral ships, and of neutral goods
except contraband on enemy ships. It also required blockades to be effective
and supported by a force sufficient to actually prevent access to the coast of
CUSTOM 41
43 Nussbaum, A Concise History of the

the enemy.43 As a treaty, it applied only between the parties to it: Austria, Law of Nations, 1962, 192. See also
France, Prussia, Russia, Sardinia, Turkey and the United Kingdom. Chapter 20 below, 350–1.
Subsequently, however, the rules contained in the Declaration were accepted 45 See M.Kazazi, Burden of Proof and
by a large number of other states as rules of customary law. Related Issues. A Study on Evidence
Similar problems arise with resolutions passed at meetings of Before International Tribunals, Studies
and Materials on the Settlement of
international organizations, particularly resolutions of the United Nations International Disputes (P.Malanczuk
General Assembly which will be discussed separately below.44 ed.), Vol. 1, 1996.
46 See Bernhardt (1992), op. cit.,
Finally, it must be noted that the debate on what constitutes proper 900–1.
evidence of customary law needs to be separated from procedural 47 Asylum Case, ICJ Rep. 1950, 266–
questions, such as the burden of proof or general rules on evidence before 389, at 277. The case gave rise to three
decisions by the ICJ, but these
international courts and tribunals.45 It is true that a state seeking to rely decisions are not viewed as giving a
on a particular rule of customary law normally has the burden of proving precise picture of the nature of
the fact that the relevant state practice exists.46 But an international judge diplomatic asylum, see J.A.Barberis,
Asylum, Diplomatic, EPIL I (1995), 281–
or arbitrator will not rely on rules of procedure to decide whether a 3, at 282; A.Grahl-Madsen, Asylum,
norm exists or not, but will rather make a value judgment. Territorial, ibid., 283–7; K.Hailbronner,
Haya de la Torres Cases, ibid., 683–5
48 Ibid.
49 Nicaragua v. US (Merits), ICJ Rep.
The problem of repetition 1986, at 98, para. 186. See H.C.M.
Charlesworth, Customary International
It has sometimes been suggested that a single precedent is not enough to Law and the Nicaragua Case, AYIL 11
establish a customary rule, and that there must be a degree of repetition (1984/7), 1–31; H.G.Anthony, Appraisals
of the ICJ’s Decision: Nicaragua v.
over a period of time; thus, in the Asylum case the International Court of United States (Merits), AJIL 81 (1987),
Justice suggested that a customary rule must be based on ‘a constant and 77–183; A.D’Amato, Trashing
uniform usage’.47 However, this statement must be seen in the light of the Customary International Law, ibid., 101–
5; F.L.Kirgis, Jr., Custom on A Sliding
facts of the Asylum case, where the Court said: ‘The facts…disclose so Scale, ibid., 146–51; J.I. Charney,
much uncertainty and contradiction, so much fluctuation and discrepancy Customary International Law in the
Nicaragua Case. Judgment on the
in the exercise of diplomatic asylum and in the official views expressed on Merits, Hague YIL 1 (1988), 16–29; W.
various occasions…that it is not possible to discern…any constant and Czaplinski, Sources of International Law
uniform usage, accepted as law.’48 (In this case, Victor Raúl Haya de la in the Nicaragua Case, ICLQ 38 (1989),
151–66; P.P.Rijpkem, Customary
Torre, the leader of an unsuccessful rebellion in Peru in 1948, obtained International Law in the Nicaragua
asylum in the Colombian Embassy in Lima. Peru and Colombia referred Case, NYIL 20 (1989), 91–116;
to the ICJ the question of whether Colombia had the right to grant asylum J.Crawford, Military Activities Against
Nicaragua Case (Nicaragua v. United
and whether he should be handed over to the Peruvian authorities or be States), EPIL III (forthcoming). On the
granted safe-conduct out of the country.) In other words, what prevented relevance of the case for the use of
force see Chapter 19 below, 311, 317,
the formation of a customary rule in the Asylum case was not the absence 319–22, and on the problem of the
of repetition, but the presence of major inconsistencies in the practice. jurisdiction of the Court see Chapter 18
In the Nicaragua case, the ICJ held: below, 284.
It is not to be expected that in the practice of States the application

of the rules in question should have been perfect, in the sense
that States should have refrained, with complete consistency,
from the use of force or from intervention in each other’s internal
affairs. The Court does not consider that, for a rule to be
established as customary, the corresponding practice must be
in absolutely rigorous conformity with the rule. In order to deduce
the existence of customary rules, the Court deems it sufficient
that the conduct of States should, in general, be consistent with
such rules, and that instances of State conduct inconsistent with
a given rule should generally have been treated as breaches of
that rule, not as indications of the recognition of a new rule.49
In sum, major inconsistencies in the practice (that is, a large amount of

50 UK v. Norway, ICJ Rep. 1951,

116, at 138; see L.Gündling,
practice which goes against the ‘rule’ in question) prevent the creation of a
Fisheries Case (U.K. v. Norway), customary rule. As noted by the ICJ in the Fisheries case, minor inconsistencies
EPIL II (1995), 381–3 and Chapter
12 below, 181.
(that is, a small amount of practice which goes against the rule in question)
51 See Akehurst (1974–5), Custom, do not prevent the creation of a customary rule,50 although in such cases the
op. cit., 12–21.
52 The Restatement (Third), Vol. 1,
rule in question probably needs to be supported by a large amount of practice,
para. 102, 25. in order to outweigh the conflicting practice in question.51 (The Fisheries case
concerned British claims against Norway for introducing national legislation
55 ILM 35 (1996), 830, para. 96. On on exclusive fishing rights in the waters surrounding Norway’s entire coastline
the case see Chapter 20 below,
347–9.
north of the Arctic Circle. The Court upheld the Norwegian method of
56 For a criticism see the delimitation of the territorial sea and its fixing of actual baselines.) On the
Declaration attached to the Opinion
by Judge Shi Jiuyong, ibid., 832. But
other hand, where there is no practice which goes against an alleged rule of
see also the Separate Opinion of customary law, it seems that a small amount of practice is sufficient to create
Judge Fleischhauer, ibid., 834, at
835–6.
a customary rule, even though the practice involves only a small number of
57 Dissenting Opinion of Vice- states and has lasted for only a short time.
President Schwebel, ibid., 836–7.
There remains the question of what constitutes ‘general’ practice. This
much depends on the circumstances of the case and on the rule at issue.
‘General’ practice is a relative concept and cannot be determined in the
abstract. It should include the conduct of all states, which can participate
in the formulation of the rule or the interests of which are specially affected.
‘A practice can be general even if it is not universally accepted; there is no
precise formula to indicate how widespread a practice must be, but it should
reflect wide acceptance among the states particularly involved in the relevant
activity.’52 Therefore, in the law of the sea,53 the practice of sea powers and
maritime nations will have greater significance than the practice of land-
locked states, while in the law governing outer space activities,54 the practice
of the United States and Russia will exert a more dominant influence than
that of Burundi or Chile. This can also be seen from the Advisory Opinion
of the ICJ in the Legality of Nuclear Weapons case in which the Court in
discussing whether there is a customary rule prohibiting the use of nuclear
weapons, inter alia, found that it could not ignore the ‘practice referred to
as ‘policy of deterrence’, to which an appreciable section of the international
community has adhered for many years’.55 Obviously, this refers to the
practice of certain nuclear weapons states and not to the practice of the
international community at large.56 However, as observed by Judge Schwebel
in his Dissenting Opinion:
This nuclear practice is not a practice of a lone and secondary

persistent objector. This is not a practice of a pariah Government
crying out in the wilderness of otherwise international opinion. This
is the practice of five of the world’s major Powers, of the permanent
Members of the Security Council, significantly supported for almost
50 years by their allies and other States sheltering under their
nuclear umbrellas. That is to say, it is the practice of States—and a
practice supported by a large and weighty number of other States—
that together represent the bulk of the world’s population. This
practice has been recognized, accommodated and in some
measure accepted by the international community. That measure
of acceptance is ambiguous but not meaningless.57
CUSTOM 43
What is certain is that general practice does not require the unanimous 58 See text below, 46–8.
59 See Chapter 13 below, 206. On the
practice of all states or other international subjects. This means that a doctrines of acquiescence and estoppel,
state can be bound by the general practice of other states even against its see Chapter 10 below, 154–5.
60 ICJ Rep. 1951, 116, 191; Gündling,
wishes if it does not protest against the emergence of the rule and op. cit.
continues persistently to do so (persistent objector).58 Such instances are 61 UK v. Iceland (Merits), ICJ Rep.
not frequent and the rule also requires that states are sufficiently aware 1974, 3, at 47, 56–8, 81–8, 119–20,
135, 161. The remaining four judges did
of the emergence of the new practice and law. Thus, for example, the not deal with this issue. See G.
contention can hardly be sustained that the practice of space powers to Jaenicke, Fisheries Jurisdiction Cases
launch their space objects into outer space after 1957 by crossing the air (U.K. v. Iceland; Federal Republic of
Germany v. Iceland), EPIL II (1995),
space under the sovereignty of other countries developed into custom by 386–9. See Chapter 12 below, 183.
the acquiescence of those states.59 The countries affected simply often 62 AJIL 41 (1947), 172, 219–20. See
Chapter 20 below, 354–5 and Nicaragua
lacked the technological capacities to find out. v. USA, op. cit., 99–104, 106–8.
63 K.Zemanek, What is ‘State Practice’
and Who Makes It?, in FS Bernhardt,
What states say and what states do 289–306, at 306.
64 Similarly, the Draft Articles on State
It is sometimes suggested that state practice consists only of what states Responsibility for Internationally
Wrongful Acts adopted by the ILC in its
do, not of what they say. For instance, in his dissenting opinion in the first reading in 1980 (text in Brownlie
Fisheries case, Judge Read argued that claims made to areas of the sea BDIL, 426), in defining an ‘internationally
wrongful act’, inter alia, refer to ‘conduct
by a state could not create a customary rule unless such claims were consisting of an action or omission’ that
enforced against foreign ships.60 But in the later Fisheries Jurisdiction is attributable to the state under
cases ten of the fourteen judges inferred the existence of customary rules international law, draft Article 3(a). See
from such claims, without considering whether they had been enforced.61 65 See Müller/Cottier, op. cit.
(These two parallel cases dealt with the validity of the establishment by
Iceland of a fifty-mile exclusive fishery zone and its effect on the fishing
rights of the United Kingdom and Germany which these two states had
traditionally enjoyed within this zone.) Similarly, the Nuremberg Tribunal
cited resolutions passed by the League of Nations Assembly and a Pan-
American Conference as authority for its finding that aggressive war
was criminal according to the ‘customs and practices of states’.62 The
better view therefore appears to be that state practice consists not only
of what states do, but also of what they say.
This becomes even clearer if one takes the fact into account that in
the modern world states have found new means of communication. As
noted in a recent empirical study on state practice, Zemanek arrives at
the following conclusion:
The beloved ‘real’ acts become less frequent because

international law, and the Charter of the UN in particular, place
more and more restraints on States in this respect. And what
formerly was confined to diplomatic notes is now often transmitted
via new forms of communication, mainly for reasons of domestic
or international policy. The present information society forces
governments which seek the widest possible support for their
stance to resort to publicity.63
Finally, state practice also includes omissions; many rules of international

law forbid states to do certain acts, and, when proving such a rule, it is
necessary to look not only at what states do, but also at what they do
not do.64 Even silence on the part of states is relevant because passiveness
and inaction with respect to claims of other states can produce a binding
effect creating legal obligations for the silent state under the doctrine of
acquiescence.65
66 North Sea Continental Shelf

cases, ICJ Rep. 1969, 3, at 44;
The psychological element in the formation of customary
G.Jaenicke, North Sea Continental law (opinio iuris)
Shelf Cases, EPIL 2 (1981), 205–8.
See also Chapter 12, 184–91 and When inferring rules of customary law from the conduct of states, it is
text below, 46.
67 See L.D.Paul, Comity in necessary to examine not only what states do, but also why they do it. In
International Law, Harvard ILJ 32 other words, there is a psychological element in the formation of customary
(1991), 1–79; P.Macalister-Smith,
Comity, EPIL I (1992), 671–4. See law. State practice alone does not suffice; it must be shown that it is
also Chapter 4 below, 73. accompanied by the conviction that it reflects a legal obligation. For instance,
68 J.L.Slama, Opinio juris in
Customary International Law, Okla. there are many international acts performed habitually, such as flag salutes
CULR 15 (1990), 603–56; Elias greeting a foreign ship on the high seas, or in the field of ceremony and
(1995), op. cit.
69 See Chapter 7 below, 110–15. protocol, which are motivated solely by courtesy or tradition, ‘but not by
70 See Restatement (Third), Vol. 1, any sense of legal duty’.66 Such behaviour is based merely on what is called
para. 101, 25.
71 See W.Karl, Protest, EPIL 9 ‘comity’ or ‘courtoisie’ in the relations between states.67
(1986), 320–2. The technical name given to this psychological element is opinio iuris sive
72 Lotus Case, PCIJ, series A, no.
10, 28 et seq. See K.Herndl, Lotus, necessitatis (opinio iuris for short).68 It is usually defined as a conviction felt
The, EPIL 2 (1981), 173–7. See by states that a certain form of conduct is required by international law. This
also Chapter 12 below, 190–1.
definition presupposes that all rules of international law are framed in terms
of duties. But that is not so; in addition to rules laying down duties, there are
also permissive rules, which permit states to act in a particular way (for
example, to prosecute foreigners for crimes committed within the prosecuting
state’s territory) without making such actions obligatory.69 In the case of a
rule imposing a duty, the traditional definition of opinio iuris is correct; in
the case of a permissive rule, opinio iuris means a conviction felt by states
that a certain form of conduct is permitted by international law.
There is clearly something artificial about trying to analyse the psychology
of collective entities such as states. Indeed, the modern tendency is not to look
for direct evidence of a state’s psychological convictions, but to infer opinio
iuris indirectly from the actual behaviour of states. Thus, official statements
are not required; opinio iuris may be gathered from acts or omissions.70 For
these purposes, it must be remembered that rules of international law govern
the behaviour of states in their relations with other states; it is therefore necessary
to examine not only what one state does or refrains from doing, but also how
other states react. If conduct by some states provokes protests from other states
that such conduct is illegal, the protests can deprive such conduct of any value
as evidence of customary law.71
Permissive rules can be proved by showing that some states have acted
in a particular way (or have claimed that they are entitled to act in that
way) and that other states, whose interests were affected by such acts (or
claims), have not protested that such acts (or claims) are illegal.
In the case of rules imposing duties, it is not enough to show that states
have acted in the manner required by the alleged rule, and that other states
have not protested that such acts are illegal. It also needs to be proved that
states regard the action as obligatory. Recognition of the obligatory character
of particular conduct can be proved by pointing to an express
acknowledgment of the obligation by the states concerned, or by showing
that failure to act in the manner required by the alleged rule has been
condemned as illegal by other states whose interests were affected.
The difference between permissive rules and rules imposing duties can
be clearly seen in the Lotus case.72 The facts of the case were as follows:
CUSTOM 45
a French merchant ship collided with a Turkish merchant ship on the 73 See Advisory Opinion on the Legality
of the Threat or Use of Nuclear
high seas, and as a result (allegedly) of negligence on the part of Lieutenant Weapons, op. cit., 826, para. 67. On this
Demons, an officer on the French ship, several people on the Turkish case see Chapter 20 below, 347–9.
ship lost their lives. France had jurisdiction to try Lieutenant Demons 75 See Chapter 12 below, 176–82.
for manslaughter, but the question was whether Turkey also had 76 Advisory Opinion on the Legality of
jurisdiction to try him. Turkey argued that there was a permissive rule the Threat or Use of Nuclear Weapons,
op. cit., 827, para. 73. However, the
empowering it to try him; France argued the exact opposite, namely, Court also noted in this case: ‘In the
that there was a rule imposing a duty on Turkey not to try him. The long run, international law, and with it
Permanent Court of International Justice accepted the Turkish argument the stability of the international order
which it is intended to govern, are bound
and rejected the French argument because, first, although there were to suffer from the continuing difference
only a few cases in which states in Turkey’s position had instituted of views with regard to the legal status
of weapons as deadly as nuclear
prosecutions, the other states concerned in those cases had not protested weapons. It is consequently important to
against the prosecutions; and secondly, although most states in Turkey’s put an end to this state of affairs; the
position had refrained from instituting prosecutions, there was no long-promised complete nuclear
disarmament appears to be the most
evidence that they had done so out of a sense of legal obligation. appropriate means of achieving that
Moreover, if states are clearly divided on whether a certain conduct result.’ Ibid., 830, para. 98.
(such as non-recourse to nuclear weapons over the past fifty years) 77 R.Ago, Science juridique et droit
international, RdC (1956–II), 849–955,
constitutes the expression of an opinio iuris (in this case that the use of at 932 et seq.
nuclear weapons is illegal), it is impossible to find that there is such
opinio iuris.73
Opinio iuris is sometimes interpreted to mean that states must believe
that something is already law before it can become law. However, that is
probably not true; what matters is not what states believe, but what they
say. If some states claim that something is law and other states do not
challenge that claim, a new rule will come into being, even though all the
states concerned may realize that it is a departure from pre-existing rules.
Customary law has a built-in mechanism of change. If states are agreed
that a rule should be changed, a new rule of customary international
law based on the new practice of states can emerge very quickly; thus
the law on outer space developed very quickly after the first artificial
satellite was launched.74 If the number of states supporting a change, or
the number of states resisting a change, is small, they will probably soon
fall into line with the practice of the majority. The real difficulty comes
when the states supporting the change and the states resisting the change
are fairly evenly balanced. In this case change is difficult and slow, and
disagreement and uncertainty about the law may persist for a long time
until a new consensus emerges, as, for example, in the dispute about the
width of the territorial sea.75 Another example is the case of the Legality
of Nuclear Weapons in which the ICJ found:
The emergence, as lex lata, of a customary rule specifically

prohibiting the use of nuclear weapons as such is hampered by
the continuing tensions between the nascent opinio juris on the
one hand, and the still strong adherence to the practice of
deterrence on the other.76
‘Instant’ customary law

A special problem is the existence or non-existence of the category of ‘diritto
spontaneo’ or ‘instant customary international law’ which has been
brought to the forefront by some authors, such as Roberto Ago77 and Bin
78 B.Cheng, United Nations Cheng.78 The result is to deny the significance of state practice and the
Resolutions on Outer Space:
‘Instant’ International Customary relevance of the time factor in the formation of customary international
Law?, Indian JIL (1965), 23 et seq. law and to rely solely on opinio iuris, as expressed in non-binding resolutions
79 ICJ Rep. 1969, at 4.
80 See Jennings (1984), op. cit.,
and declarations, as the constitutive element of custom.
285. It is true that the International Court of Justice has clarified in the North
81 For a discussion of the Italian Sea Continental Shelf cases that customary law may emerge even within a
doctrine see F.Münch, A Propos du
Droit Spontane, Studi in Onore di relatively short passage of time.79 It may also be noted that changes in the
Guiseppe Sperduti, 1984, 149–62. international law-making process have modified the concept of modern
82 See P.Malanczuk, Space Law as
a Branch of International Law, NYIL customary law in several respects, including the tendency that it is made with
25 (1994), 143–80, 160–1. relative speed, written in textual form, and is more elaborate than traditional
83 ICJ Rep. 1969, 43.
84 ICJ Rep. 1986, 97 et seq. custom.80 The possibility of ‘instant’ customary international law, or ‘droit
85 Bernhardt (1992), op. cit., 902. spontane’,81 based upon opinio iuris only and without the requirement of
any practice, however, has remained a matter of dispute.82 In view of the
nature of the decentralized international legal system and the elementary role
of state practice as the objective element in the formation of customary law,
enabling one to distinguish it from non-binding commitments, opinio iuris
on its own, even if clearly established for some states as the subjective element,
does not suffice to establish general custom in controversial areas. In addition,
the very notion of ‘custom’ implies some time element and ‘instant custom’ is
a contradiction in terms, although it appears that this is more a matter of
appropriate terminology than of substance.
This view is confirmed by the jurisprudence of the ICJ. In the North Sea
Continental Shelf cases the Court insisted that ‘an indispensable requirement
would be that within the period in question, short though it might be, State
practice, including that of States whose interests are specially affected, should
have been both extensive and uniform’.83 In other words, the reduction of
the time-element requirement is carefully balanced with a stronger emphasis
on the scope and nature of state practice. An even clearer implicit rejection
of the doctrine of ‘instant custom’ can be found in the following words of
the Court in the Nicaragua case:
The mere fact that States declare their recognition of certain rules
is not sufficient for the Court to consider these as being part of
customary international law… Bound as it is by Article 38 of its
Statute…the Court must satisfy itself that the existence of the rule
in the opinio iuris of States is confirmed by practice.84
Bernhardt also denies that under the traditional concepts of international

law ‘instant’ custom is possible, but he can imagine ‘exceptional cases and
situations in which such instant law is useful or even necessary: If, for
instance, the community of States unequivocally and without any dissent
considers certain acts, which have not been known before, to be illegal, the
opinio juris might suffice even if no practice could evolve.’85 There may
indeed be a need for this, but then it is not custom but some other (new)
source of international law.
Universality and the consensual theory of international law

It has already been suggested that the practice followed by a small number
of states is sufficient to create a customary rule, if there is no practice
CUSTOM 47
86 See text above, 41–3.

which conflicts with that rule.86 But what if some states oppose the alleged 87 See Chapter 21 below, 376–7.
rule? Can the opposition of a single state prevent the creation of a 88 PCIJ, series A, no. 10, 18. See text
above, 44–5.
customary rule? If so, there would be very few rules, because state practice 89 On Soviet doctrine in general see
differs from state to state on many topics. On the other hand, to allow Chapter 2 above, 23, 33.
90 ICJ Rep. 1950, 266, 277, 293–4,
the majority to create a rule against the wishes of the minority would 316. See text above, 41.
lead to insuperable difficulties. How large must the majority be? In 91 See Chapter 11 below, 161–72.
92 See Chapter 15 below, 233–40 and
counting the majority, must equal weight be given to the practice of Chapter 2 above, 28–30.
Guatemala and that of the United States? If, on the other hand, some 93 See Chapter 12 below, 173–97.
94 On regional customary international
states are to be regarded as more important than others, on what criteria law see Chapters 1, 2–3 and 2, 30–2
is importance to be based? Population? Area? Wealth? Military power? above.
95 B.Simma, Consent: Strains in the
In a different context, the same questions have arisen with regard to the Treaty System, in Macdonald/
reform of the composition of the UN Security Council currently under Johnston (eds), op. cit., 485 et seq.;
D.W.Greig, Reflections on the Role of
discussion.87 Consent, AYIL 12 (1992), 125–76;
In the Lotus case, the Permanent Court of International Justice said: A.Pellet, The Normative Dilemma:
‘The rules of law binding upon states…emanate from their own free will Will and Consent in International
Law-Making, ibid., 22–53.
as expressed in conventions or by usages generally accepted as expressing 96 Asylum case, op. cit., 276–7;
principles of law.’88 This consensual theory, as it is called, has been Rights of Nationals of the United
States in Morocco case, ICJ Rep.
criticized in the West, but it has been accepted with enthusiasm by Soviet 1952, 176, at 200.
lawyers. Soviet doctrine used to teach that international law is the result
of an agreement between states, and that the only difference between
treaties and custom is one of form, treaties representing an express
agreement and custom representing an implied agreement.89 The merit
of this approach is that it explains divergences in state practice; just as
different treaties can be in force between different groups of states, so
different rules of customary law can apply between different groups of
states. The International Court of Justice came some way towards the
Soviet approach in the Asylum case, where it recognized the existence of
regional customs applying among groups of states in Latin America.90
The consensual theory explains divergences in state practice, but it is
rather unconvincing when it is applied to new states. The orthodox rule
is that new states are automatically bound by generally accepted
international law. The problem of the relation of new states to existing
international law is primarily a matter belonging to the area of state
succession, and will be taken up later.91 As far as customary law is
concerned, the prevailing view is, with different reasoning, that new
states cannot in principle escape existing customary obligations. One
cannot select rights granted by a legal system ‘à la carte’ and at the same
time reject the duties one dislikes. However, the reservations of the
decolonized new states towards the international legal order created by
the old colonial powers have had a considerable impact in particular
areas, such as international economic law92 and the law of the sea,93
which, at a minimum, has led to legal uncertainty. It has become more
and more difficult to find the required general practice and opinio iuris
for customary international law to retain its universal significance.94
The element of consent95 can also become fictitious when one is dealing
with the emergence of new rules of customary law among existing states.
The International Court of Justice has emphasized that a claimant state
which seeks to rely on a customary rule must prove that the rule has
become binding on the defendant state.96 The obvious way of doing this is
97 Fisheries case, op. cit., at 131.

to show that the defendant state has recognized the rule in its own state
99 See Bernhardt (1992), op. cit., practice (although recognition for this purpose may amount to no more
904; O.Elias, Some Remarks on the
Persistent Objector Rule in
than failure to protest when other states have applied the rule in cases
Customary International Law, affecting the defendant’s interests). But it may not be possible to find any
Denning LJ (1991), 37–51;
C.Tomuschat, Obligations Arising for
evidence of the defendant’s attitude towards the rule, and so there is a
States Without or Against Their Will, second—and more frequently used—way of proving that the rule is binding
RdC 241 (1993–IV), 195–374.
100 J.I.Charney, Universal
on the defendant: by showing that the rule is accepted by other states. In
International Law, AJIL 87 (1993), these circumstances the rule in question is binding on the defendant state,
529– 51, at 538 et seq.; see also ILA
Committee on the Formation of
unless the defendant state can show that it has expressly and consistently
Customary (General) International rejected the rule since the earliest days of the rule’s existence; dissent
Law, ILA Rep. 1992, 366 et seq.
101 For the historical background
expressed after the rule has become well established is too late to prevent
see, Chapter 2 above, 12–14. the rule binding the dissenting state. Thus, in the Fisheries case, the
102 See B.Cheng, General
Principles of Law as Applied by
International Court of Justice held that a particular rule was not generally
International Courts and Tribunals, recognized, but added: ‘In any event, the…rule would appear to be
1987; G. Hanessian, ‘General
Principles of Law’ in the Iran-US
inapplicable as against Norway, inasmuch as she has always opposed any
Claims Tribunal, Colum. JIL 27 attempt to apply it to the Norwegian coast.’97
(1989), 309; M.C.Bassiouni, A
Functional Approach to ‘General
The problem of the ‘persistent objector’, however, has recently attracted
Principles of International Law’, more attention in the literature. Can a disagreeing state ultimately and
Mich. JIL 11 (1990), 768–818; J.A.
Westberg/B.P.Marchais, General
indefinitely remain outside of new law accepted by the large majority of
Principles Governing Foreign states? Do emerging rules of ius cogens98 require criteria different to norms
Investment as Articulated in Recent
International Tribunal Awards and
of lesser significance? Such questions are far from settled at this point in
Writings of Publicists, ICSID Rev. 7 time.99 The view of Charney, who dispenses with the ‘persistent objector’
(1992), 453–96; V.-D.Degan,
General Principles of Law (A Source
altogether, however, is an exceptional one.100
of General International Law), FYIL
3 (1992), 1–102; L.Ferrari-Bravo,
Considérations sur la méthode de
recherche des principes généraux General principles of law
du droit international de
l’environnement, Hague YIL 7
(1994), 3–10; H.Mosler, General The third source of international law listed in the Statute of the international
Principles of Law, EPIL II (1995),
511–27.
Court of Justice is ‘the general principles of law recognized by civilized
nations’. (All nations are now considered as ‘civilized’;101 the new term is
‘peace-loving’, as stated in Article 4 of the UN Charter as a requirement for
admission to the organization.) This phrase was inserted in the Statute of
the Permanent Court of International Justice, the forerunner of the
International Court of Justice, in order to provide a solution in cases where
treaties and custom provided no guidance; otherwise, it was feared, the
Court might be unable to decide some cases because of gaps in treaty law
and customary law. However, there is little agreement about the meaning of
the phrase. Some say it means general principles of international law; others
say it means general principles of national law. Actually, there is no reason
why it should not mean both; the greater the number of meanings which
the phrase possesses, the greater the chance of finding something to fill
gaps in treaty law and customary law—which was the reason for listing
general principles of law in the Statute of the Court in the first place. Indeed,
international tribunals had applied general principles of law in both these
senses for many years before the PCIJ was set up in 1920.102
According to the first definition (general principles of international law),
general principles of law are not so much a source of law as a method of
using existing sources—extending existing rules by analogy, inferring the
existence of broad principles from more specific rules by means of
GENERAL PRINCIPLES OF LAW 49
103 On comparative legal studies see

inductive reasoning, and so on. According to the second definition Chapter 1 above, 6. On the relationship
of general principles of law (general principles of national law), gaps between international law and national
law see Chapter 4 below, 63–74.
in international law may be filled by borrowing principles which are 104 See H.Mosler, The International
common to all or most national systems of law; specific rules of law Society as a Legal Community, rev. edn
1980, 136 et seq.
usually vary from country to country, but the basic principles are 105 A.D’Amato, Good Faith, EPIL II
often similar.103 (1995), 599–601; J.F.O’Connor, Good
In reality, the matter is more complicated. Not all general principles Faith in International Law, 1991. In the
Nuclear Tests case (Australia v. France),
applied in international practice stem from domestic legal systems and judgment of 20 December 1974 (ICJ
have been transplanted to the international level by recognition.104 Some Rep. 1974, 268, para. 46), the Court
held: ‘one of the basic principles
are based on ‘natural justice’ common to all legal systems (such as the governing the creation and performance
principles of good faith,105 estoppel106 and proportionality107), others of legal obligations, whatever their
simply apply logic familiar to lawyers (such as the rules lex specialis source, is the principle of good faith.
Trust and confidence are inherent in
derogat legi generali, lex posterior derogat legi priori108), and another international cooperation, in particular in
category is related to ‘the specific nature of the international community’, an age when this cooperation in many
as expressed in principles of ius cogens. 109 Therefore, a real fields is becoming increasingly essential.’
See also Art. 26 of the 1969 Vienna
transplantation of domestic law principles to the international level is Convention on the Law of Treaties,
limited to a number of procedural rules, such as the right to a fair hearing, discussed in Chapter 9 below, 141.
in dubio pro reo, denial of justice,110 or the exhaustion of local remedies,111 107 See Chapter 1 above, 4 and
and some substantive principles, such as prescription112 and liability for Chapters 17, 271–2 and 19, 316–17
fault.113 The mechanism by which such transformation takes place in below.
108 See text below, 56.
practice goes through the mind of the international judge or arbitrator 109 K.-J.Partsch, International Law and
who has to decide a particular case. This is known as the ‘creative role’ Municipal Law, EPIL II (1995), 1188. On
of the judge, which is not at all peculiar to the international legal system. ius cogens see text below, 57–8.
110 S.Verosta, Denial of Justice, EPIL I
On the other hand, the difficulty of proving that a principle is common (1992), 1007–10.
to most or all legal systems is not as great as might be imagined. Legal 111 See Chapter 17 below, 267–8.
systems are grouped in families; the law in most English-speaking 113 See Chapter 17 below, 258.
countries is very similar, simply because the settlers took with them the 114 Art. 9, Statute of the ICJ, text in
law they knew, just as the law in most Latin American countries is very Brownlie BDIL, 438. See Chapter 18
below, 282.
similar. Once one has proved that a principle exists in English law, one is 115 D.J.Ibbetson, The Roman Law
fairly safe in assuming that it also exists in New Zealand and Australia. Tradition, 1994. On Grotius see Chapter
The problem is, of course, what do we do about the other systems in the 2 above, 15–16.
world. In fact, what sometimes happens in practice is that an international
judge or arbitrator makes use of principles drawn from the legal system
in his own country, without examining whether they are also accepted
by other countries. The practice is obviously undesirable, but it is too
common to be regarded as illegal. In the election of the judges of the
International Court of Justice, the electors are required to bear in mind
that ‘in the body as a whole the representation of the main forms of
civilization and of the principal legal systems of the world should be
assured’.114
General principles of law have proved most useful in ‘new’ areas of
international law. When the modern system of international law was
beginning to develop in the sixteenth and seventeenth centuries, writers
like Grotius drew heavily on Roman law,115 and a Roman ancestry can
still be detected in many of the rules which have now been transformed
into customary law (for example, concerning the acquisition of title to
territory).116 In the nineteenth century international arbitration, which
had previously been rare, became more common, and the need for rules
of judicial procedure was met by borrowing principles from national law
(for example, the principle that a tribunal is competent to decide whether
or not it has jurisdiction in cases of doubt, and the principle that claims
117 See Chapters 2 above, 20 and

17, 269 and 18, 293–8 below.
brought before a tribunal after an unreasonable delay must be dismissed as
118 See Chapters 6, 103 and 21, inadmissible).117
381 below. In the present century international law, or something closely resembling
119 See text above, 38–9.
120 See Chapter 18 below, 289. international law, has come to regulate certain contracts made by individuals
121 v. Hecke, op. cit., 818. or companies with states or international organizations—for example,
122 ICJ Rep. 1950, 148. See also
M. Shahabuddeen, Municipal Law
contracts of employment in international organizations, 118 and oil
Reasoning in International Law, in concessions.119 Treaties and customary law contain few rules applicable to
Lowe/Fitzmaurice (eds), op. cit., 90– such topics, and the gap has been filled by recourse to general principles of
103. On the South-West Africa case
see Chapters 18, 284 and 19, 328– commercial and administrative law, borrowed from national legal systems.
9 below. For instance, international administrative tribunals, which try disputes
123 See J.Stone, Non Liquet and the between international organizations and their staff, have consistently applied
Function of Law in the International
Community, BYIL 1959, 145; the principle, borrowed from national law, that an official must be informed
Fastenrath (1991), op. cit.; and of criticisms made against him and must be given an opportunity to reply
compare the Declaration of Judge
Vereshchetin in the ICJ’s Advisory
to those criticisms before the international organization employing him takes
Opinion on the Legality of the Threat or a decision to his detriment on the basis of those criticisms.120 In the case of
Use of Nuclear Weapons, op. cit., 833 ‘internationalized contracts’ between a state and foreign companies, the
with the Dissenting Opinions of Judge
Schwebel, ibid., 836, at 840, Judge purpose of referring to general principles in connection with an arbitration
Shahabuddeen, ibid., 861, at 866, and clause is primarily (from the viewpoint of the investing company) to prefer
Judge Koroma, ibid., 925, at 930. to trust the arbitrator’s (s’) discretion to discover relevant rules of law
124 See the Separate Opinion of
Judge Fleischhauer, ibid., 835. creatively, rather than being at the mercy of the contracting state’s national
125 See Dissenting Opinion of legislation.121
Judge Higgins, ibid., 934.
126 R.Jennings/A.Watts (eds), However, it must be remembered that the environment in which
Oppenheim’s International Law, Vol. international law operates is very different from the one in which national
I, part 1, 9th edn 1992, 13.
law operates, and principles of national law can be used to fill gaps in
international law only if they are suited to the international environment.
As noted by Judge McNair in the South-West Africa case:
The way in which international law borrows from this source is not
by means of importing private law institutions ‘lock, stock and barrel’,
ready-made and fully equipped with a set of rules. It would be difficult
to reconcile such a process with the application of ‘the general
principles of law’.122
Finally, it should be pointed out that the issue of whether an international

court is obliged to fill in gaps in substantive international law in order to
provide for the ‘completeness’ of the legal system, to render a concrete
decision and thus to avoid declaring non liquet (‘the matter is unclear’), has
remained controversial.123 It is interesting to note that the ICJ in its rather
inconclusive Advisory Opinion in the Legality of Nuclear Weapons case
did not make any use of the general principles of law recognized in all legal
systems.124 In fact, what the Court has done in this decision is that it
pronounced a non liquet on the central issue on the grounds of uncertainty
in the current state of international law, and of the facts.125 It is submitted
that the concept of non liquet is an unhealthy one for the judicial function
and courts misunderstand their duties if they plead non liquet in any given
case. In international law one does not always discover a
clear and specific rule readily applicable to every international

situation, but… every international situation is capable of being
determined as a matter of law.126
LEARNED WRITERS 51
127 See V.Röben, Le Précédent dans la

Judicial decisions jurisprudence de la Cour Internationale,
GYIL 32 (1989), 382– 407;
Article 38(1)(d) of the Statute of the International Court of Justice directs M.Shahabuddeen, Precedent in the
World Court, 1996.
the Court to apply ‘judicial decisions…as subsidiary means for the 128 See text above, 39.
determination of rules of law’. This direction is made ‘subject to the 129 See Chapter 6 below, 93.
provisions of Article 59’, which state that ‘the decision of the Court has 131 See text above, 42 and Chapter 12
no binding force except between the parties and in respect of that below, 181.
particular case’. In other words, there is no formal stare decisis doctrine, 132 See Jennings (1984), op. cit., 287;
H.Lauterpacht, The Development of
as known in common law systems; in international law international International Law by the International
courts are not obliged to follow previous decisions, although they almost Court, 1982.
always take previous decisions into account.127 133 See Chapter 14 below, 217–19.
We have already seen that judicial and arbitral decisions can be 135 See Chapter 18 below, 298–300.
evidence of customary law.128 But it is probably true to say that judges 136 See R.Y.Jennings, The International
Court of Justice after Fifty Years, AJIL
can also create new law. The International Court of Justice is particularly 89 (1995), 493–505, at 504.
important in this respect. Many of its decisions introduced innovations 137 See Chapter 8 below, 123–9.
into international law which have subsequently won general acceptance— 138 See further K.Doehring, The
Participation of International and National
for instance, the Reparation for Injuries case,129 the Genocide case130 Courts in the Law-Creating Process,
and the Fisheries case.131 There is a very strong probability that the SAYIL 17 (1991/2), 1–11; R.Y. Jennings,
International Court (and other tribunals) will follow such decisions in The Judiciary, International and National,
and the Development of International
later cases, since judicial consistency is the most obvious means of Law, ICLQ 45 (1996), 1–12.
avoiding accusations of bias. Thus, it is generally questionable whether
at least decisions of the International Court of Justice can in fact still be
regarded as only ‘subsidiary’ means of determining the law.132
One aspect which will require more attention in the future arises
from the recent proliferation of international tribunals and courts, such
as various regional courts, courts on human rights,133 international
criminal courts134 and the Tribunal for the Law of the Sea.135 This
proliferation is likely to lead to conflicting decisions on international
law and there is no ultimate legal authority in the sense of a supreme
court to harmonize such conflicts. The ICJ is not in such a position
because it lacks any formal relations with other international courts and
tribunals.136
Judgments of national courts are also covered by Article 38(1)(d);
many of the rules of international law on topics such as diplomatic
immunity137 have been developed by judgments of national courts. But
judgments of national courts need to be used with caution; the judges
may look as if they are applying international law (and may actually
believe that they are doing so), when in fact all that they are applying is
some peculiar rule of their own national law.138
Learned writers
Article 38(1)(d) also directs the Court to apply ‘the teachings of the
most highly qualified publicists of the various nations, as subsidiary
means for the determination of rules of law’. The word ‘publicists’ means
‘learned writers’. Like judicial decisions, learned writings can be evidence
of customary law, but they can also play a subsidiary role in developing
new rules of law.
In the past, writers like Grotius exercised influence of a sort which no
writer could hope to exercise nowadays. But writers have not entirely lost

140 A.Oraison, Réflexions sur ‘la
their influence. They still continue to provide the sort of conceptual framework
doctrine des publicistes les plus which is necessary for any legal discussion; for instance, states had been
qualifiés des différentes nations’,
RBDI 24 (1991), 507–80.
claiming limited rights in areas adjacent to their territorial sea long before
141 See C.Gray/B.Kingsbury, Gidel started writing about such claims, but it was Gidel who produced the
Developments in Dispute Settlement:
Inter-State Arbitration Since 1945,
concept of the contiguous zone as a framework for discussing the validity of
BYIL 63 (1992), 97, 129. these claims.139 Moreover, one finds that states in diplomatic controversies
142 S.Rosenne, The Law and
Practice of the International Court of
still quote profusely from writers (although the quotations are not always
Justice, 2nd edn 1985, 614–6. acknowledged), because writers provide a comprehensive, succinct and (with
143 See Chapter 18 below, 292, 302.
144 For a discussion see K.
luck) impartial summary of state practice. (A summary which is deliberately
Skubiszewski, Resolutions of the made as brief as possible, like the Harvard draft conventions, is particularly
U.N. General Assembly and
Evidence of Custom, in Études en
useful for purposes of quotation.) In a nutshell, writers quote states and
l’honneur de R. Ago, 1987, Vol. I, states quote writers, at least when it suits their interests.
503 et seq; B.Sloan, General
Assembly Resolutions Revisited
Generally speaking, in a multicultural world the problem of identifying
(Forty Years After), BYIL 58 (1987), those ‘teachings’ of writers which are the most authoritative is no longer
39 et seq.; C.Economidès, Les
Actes institutionnels internationaux
likely to lead to easy universal acceptance of certain propositions. This has
et les sources du droit international, become difficult also due to the large quantity of publications that are
AFDI (1988), 142 et seq.;
J.A.Frowein, The Internal and
nowadays produced by writers on international law.140 While international
External Effects of Resolutions by arbitral tribunals frequently cite textbooks and authors,141 the International
International Organizations, ZaöRV
49 (1989), 778– 90; B.Sloan, United
Court of Justice refrains from doing so in its decisions,142 as distinct from
Nations General Assembly the dissenting or concurring opinions of individual judges.143
Resolutions in Our Changing World,
1991; J.A.Barberis, Les Resolutions
des organisations internationales en
tant que source du droit de gens, in
FS Bernhardt, 21–39;
Other possible sources of international law
H.G.Schermers, International
Organizations, Resolutions, EPIL II
(1995), 1333–36.
Having completed our examination of the list of sources in the Statute of
145 See Chapter 9 below, 136–7. the International Court of Justice, we must now examine whether there are
any other sources which have been omitted from that list.
Acts of international organizations

The growth of international organizations since the First World War has
been accompanied by suggestions that the acts of international organizations
should be recognized as a source of international law.144 But most of the
organs of international organizations are composed of representatives of
member states, and very often the acts of such organs are merely the acts of
the states represented in those organs. For instance, a resolution of the
United Nations General Assembly can be evidence of customary law because
it reflects the views of the states voting for it; it would probably have exactly
the same value if it had been passed at a conference outside the framework
of the United Nations, and, if many states vote against it, its value as evidence
of customary law is correspondingly reduced.
However, international organizations usually have at least one organ which
is not composed of representatives of member states, and the practice of such
organs is capable of constituting a source of law. For instance, the United Nations
Secretariat often acts as a depositary of treaties and its practice as depositary
has already affected the law of treaties on such topics as reservations.145
Sometimes an international organization is authorized to take decisions
(often by majority vote) which are binding on member states. Apart from
‘internal’ questions relating to the budget, the admission and expulsion of
OTHER POSSIBLE SOURCES 53

members, and so on, the only clear example in the United Nations Charter 147 See Chapter 6 below, 95–6.
is in Chapter VII, which empowers the Security Council to give orders 148 See Chapter 15 below, 225–7.
to states as part of its action to deal with threats to the peace, breaches 149 See Chapter 13 below, 200.
150 See text above, 39, 40, 41.
of the peace and acts of aggression.146 In some other organizations powers 151 Noted by Bernhardt (1992), op.
to take binding decisions can be exercised more frequently; this is cit., 904.
152 For further discussion of resolutions
particularly true of the European Community.147 But it is questionable of international organizations as
whether such decisions should be treated as a separate source of law, evidence of customary law, see Akehurst
(1974–5), Custom, op. cit., 5–7.
because the power to take such decisions is conferred by the constituent 153 See T.Schweisfurth, The Influence
treaty of the organization concerned. The same applies to the power of of the Third United Nations Conference
on the Law of the Sea on International
the International Monetary Fund to take binding decisions on the Customary Law, ZaöRV 43 (1983), 566–
maintenance or alteration of exchange rates or depreciation of currency,148 84, 577.
or the authority of the International Civil Aviation Authority to adopt 154 UNGA Res. 1653 (XVI) of 24
November 1961.
binding standards for navigation or qualifications of flight personnel.149 155 Legality of Nuclear Weapons Case
Most resolutions have nothing to do with international law; an obvious op. cit., at 826, para. 70.
example would be a resolution recommending research into the causes of
cancer. Even when resolutions do touch upon international law, they may
simply be recommending changes, and the text of such a resolution clearly
cannot be interpreted as representing the existing law; a resolution declaring
that X ought to be the law is obviously not evidence that X is the law. If a
resolution declares that X is the law, it can be used as evidence of customary
law. But the value of such a resolution varies in proportion to the number
of states voting for it; if many states vote against it, its value as evidence of
customary law is correspondingly reduced.
It has been said that, in the Nicaragua case,150 the International Court of
Justice extensively referred to resolutions of international organizations as
a ‘source of law’,151 but under the particular circumstances of the case
concerning the issue of the jurisdiction of the Court, it is doubtful whether
it used these resolutions as sources in the technical sense. A resolution passed
at a meeting of an international organization is never conclusive evidence of
customary law. It has to be examined in conjunction with all the other
available evidence of customary law, and it may thus be possible to prove
that the resolution is not a correct statement of customary law.152 In the end,
if there is no corresponding practice, the mere statement on what the law is
supposed to be is not sufficient evidence, but nothing more than an attempt
on the part of states to clarify their respective positions.153
Nevertheless, as stated by the International Court of Justice in its
1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear
Weapons with reference to the series of General Assembly resolutions
since 1961154 that affirm the illegality of nuclear weapons:
General Assembly resolutions, even if they are not binding, may

sometimes have normative value. They can, in certain circumstances,
provide evidence important for establishing the existence of a rule or
the emergence of an opinio juris. To establish whether this is true of
a given General Assembly resolution, it is necessary to look at its
content and the conditions of its adoption; it is also necessary to see
whether an opinio juris exists as to its normative character. Or a
series of resolutions may show the gradual evolution of the opinio
juris required for the establishment of a new rule.155
156 Ibid., para. 71. See also the

Dissenting Opinion of Judge
However, in view of the substantial numbers of negative votes and
Schwebel, which is much clearer, abstentions with which several of the General Assembly resolutions on the
ibid., 839.
157 R.Bierzanek, Some Remarks on
illegality of nuclear weapons have been adopted, the Court held that they
‘Soft’ International Law, PYIL 17 still fall short of establishing the existence of an opinio juris on the illegality
(1988), 21–40; C.M.Chinkin, The
Challenge of Soft Law: Development
of the use of such weapons.156
and Change in International Law,
ICLQ 38 (1989), 850–66; P.-
M.Dupuy, Soft Law and the ‘Soft’ law
International Law of the Environment,
Mich. ILJ 12 (1991), 420–35; H.E.
Chodosh, Neither Treaty Nor
The controversy on the status of certain declarations and resolutions of
Custom: The Emergence of international organizations is connected with the phenomenon of ‘soft
Declarative International Law, Texas
ILJ 26 (1991), 87–124; W.Heusel,
law’.157 Without being able to enter into the general discussion here, it may
‘Weiches’ Völkerrecht: Eine be noted that the term ‘soft law’, as distinct from ‘hard law’, is not very
vergleichende Untersuchung
typischer Erscheinungsformen, 1991;
helpful from a legal perspective. It is known that ‘soft law’, in the sense of
F. Francioni, International ‘Soft Law’: guidelines of conduct (such as those formulated by the United Nations
A Contemporary Assessment, in
Lowe/ Fitzmaurice (eds), op. cit.,
concerning the operations of transnational companies158) which are neither
167–78. strictly binding norms of law, nor completely irrelevant political maxims,
159 See I.Seidl-Hohenveldern,
and operate in a grey zone between law and politics, is considered a special
International Economic ‘Soft Law’, characteristic of international economic law and of international
RdC 163 (1979), 165 et seq.;
W.E.Burhenne (ed.), International
environmental law.159 Such provisions can be found, for example, in treaties
Environmental Soft Law. Collection not yet in force or in resolutions of international conferences or
of Relevant Instruments, 1993;
M.A.Fitzmaurice, International
organizations, which lack legally binding quality.
Environmental Law as a Special The emergence of ‘soft law’ also has to do with the fact that states in
Field, NYIL 25 (1994), 181–226, at
199–201. See Chapters 15, 222–3
agreement frequently do not (yet) wish to bind themselves legally, but nevertheless
and 16, 241–7 below. wish to adopt and test certain rules and principles before they become law.
160 For the Rio documents see
ILM 31 (1992), 818 et seq. See
This often facilitates consensus which is more difficult to achieve on ‘hard law’
P.Malanczuk, Sustainable instruments. A peculiar example of this practice is the Forest Declaration adopted
Development: Some Critical
Thoughts in the Light of the Rio
at the 1992 Rio Conference on Environment and Development, which carries
Conference, in K.Ginther/ the illuminating title ‘A Non-legally binding Authoritative Statement of Principles
E.Denters/ P.J.I.M.de Waart
(eds), Sustainable Development
for a Global Consensus on the Management, Conservation and Sustainable
and Good Governance, 1995, Development of all Types of Forests’.160 States may even decide to create
23–52. See also Chapter 16
below, 247–8.
international organizations with their own organs and structures to fulfil
161 See T.Schweisfurth, Zur Frage international tasks without accepting any legally binding obligations, as was
der Rechtsnatur, Verbindlichkeit und
völkerrechtlicher Relevanz der
done in the case of the Conference on Security and Cooperation in Europe on
KSZE Schlußakte, ZaöRV 36 the basis of the 1975 Helsinki Final Act.161
(1976), 681 et seq.; For a recent
analysis, see I.SeidlHohenveldern,
Such guidelines, although explicitly drafted as non-legal ones, may
Internationale Organisationen nevertheless in actual practice acquire considerable strength in structuring
aufgrund von soft law, in FS
Bernhardt, 229–39; T.Schweisfurth,
international conduct.162 ‘Soft law’ may also be relevant from a sociological
Die juristische Mutation der KSZE— perspective of international law with regard to the process of the formation
Eine Internationale Organisation in
statu nascendi, ibid., 213–28;
of customary law or treaty law and the related issue of ‘legitimacy’ in the
M.Sapiro, Changing the CSCE into international legal system.163 But the result of this law-making process at
the OSCE: Legal Aspects of a
Political Transformation, AJIL 89
any given moment of legal decision is either binding law or not. In essence,
(1995), 631–7. See Chapter 6 under any meaningful concept of law, it remains essential to maintain the
below, 94.
162 See also M.Bothe, Legal and
distinction between the law de lege lata and the law de lege ferenda,164
Non-Legal Norms—A Meaningful between the codification of existing law and the progressive development
Distinction in International
Relations?, NYIL 11 (1980), 65–95.
of law, between legal norms and non-legal norms as regards their binding
163 See Chapter 2 above, 33. effect, and ultimately between the legal system and the political system.
164 See text above, 35.
Otherwise, it would become rather difficult to distinguish ideologically or
politically motivated claims from the accepted rules and principles of
international law. However, certain principles and rules which are
OTHER POSSIBLE SOURCES 55
165 See Chapter 2 above, 15–17, 32.

emerging as new norms in the process of law-making, without yet having 166 See M.Akehurst, Equity and
become accepted as legally binding, may nevertheless have limited General Principles of Law, ICLQ 25
(1976), 801 et seq.; V.Lowe, The Role of
‘anticipatory’ effect in judicial or arbitral decision-making as supporting Equity in International Law, AYIL 12
arguments in interpreting the law as it stands. (1988/9), 125–76; C.M.Fombad, Equity
in Current International Practice, REDI
45 (1989), 1–27; C.R.Rossi, Equity as a
Source of International Law?: A Legal
Equity Realist Approach to the Process of
International Decision-Making, 1993;
‘Equity’, in the present context, is used not in the technical sense which M.Lachs, Equity in Arbitration and in
the word possesses in Anglo-American legal systems in the distinction Judicial Settlement of Disputes, LJIL 6
(1993), 323–9; T.M. Franck/
between law and equity as separate bodies of law, but as a synonym for D.M.Sughrue, The International Role of
‘justice’. Moreover, those who look to equity as a source of international Equity-as-Fairness, Geo. LJ 81 (1993),
law often appeal to natural law165 in order to strengthen their arguments 563–95; P.Well, L’Équité dans la
jurisprudence de la Cour Internationale
and to escape accusations of subjectivism. Thus the three terms—‘equity’, de Justice, in Lowe/ Fitzmaurice (eds),
‘justice’ and ‘natural law’ —tend to merge into one another. op. cit., 121–44; Equity in International
Law, EPIL II (1995), 109–13;
During the sixteenth and seventeenth centuries natural law was a T.M.Franck, Fairness in International
major source of international law. In the nineteenth and twentieth Law, 1995, Chapter 3: Equity as
centuries arbitrators have often been authorized to apply justice and Fairness, 47 et seq.
167 PCIJ, series A/B, no. 70, 76–7.
equity as well as international law (such authorizations were more 168 RIAA II, 1307 and III, 1817.
common before 1920 than they are today); even in the absence of such
authorization, judges and arbitrators sometimes invoke equitable
considerations.166
In the River Meuse case (Netherlands v. Belgium) (1937),167 for
example, the Netherlands claimed that Belgium had violated a treaty by
building canals that changed the flow of water in the River Meuse. One
of the issues was whether the Netherlands had lost the right to bring the
claim because of similar earlier conduct by itself. In this connection the
Individual Opinion of Judge Hudson recognized the principle of equity
as part of international law. He noticed that there was no express
authority in the Statute of the PCIJ to apply equity as distinguished
from law. But he pointed to Article 38 of the Statute which allowed the
application of general principles and argued that principles of equity are
common to all national legal systems.
Thus, a judge or arbitrator can always use equity to interpret or fill gaps
in the law, even when he has not been expressly authorized to do so. But he
may not give a decision ex aequo et bono (a decision in which equity overrides
all other rules) unless he has been expressly authorized to do so. Article
38(2) of the Statute of the International Court of Justice provides that the
list of sources in Article 38(1) ‘shall not prejudice the power of the Court to
decide a case ex aequo et bono, if the parties agree thereto’. Article 38(2)
has never been applied, but other tribunals have occasionally been authorized
to decide ex aequo et bono; for instance, two Latin American boundary
disputes were decided in this way by arbitrators in the 1930s.168
Whatever the position may have been in the past, it is doubtful
whether equity forms a source of international law today. It cannot be
assumed that a judge is using equity as a source of law every time he
describes a rule as equitable or just. Counsel and judges in national
courts frequently appeal to considerations of equity and justice when
the authorities are divided on a point of law, but that does not lead to
equity being regarded as a source of national law; nor should appeals
by international lawyers to considerations of equity be interpreted as
meaning that equity is a source of international law.
169 See Janis, op. cit.

170 See L.D.M.Nelson, The Roles
In recent times the meaning of equity in international law has been
of Equity in the Delimitation of discussed in two rather different contexts.169 The first context is the
Maritime Boundaries, AJIL 84
(1990), 837–58; M.Miyoshi,
application of equitable principles by the ICJ in the delimitation of maritime
Considerations of Equity in the boundaries between states.170 The other area is the controversial claim of
Settlement of Territorial Boundary
Disputes, 1993; B.Kwiatkowska,
developing countries for a new international economic order which should
Equitable Maritime Boundary be based on equitable principles to achieve a fairer distribution of wealth
Delimitation, in Lowe/Fitzmaurice
(eds), op. cit., 264–92. See Chapter
between rich and poor states.171 One of the problems about equity is that it
12 below, 135–7. can often be defined only by reference to a particular ethical system.
172 See Akehurst (1976), op. cit., C.
Consequently, although references to equity are meaningful in a national
Tomuschat, Ethos, Ethics and society which can be presumed to hold common ethical values, the position
Morality in International Relations,
EPIL II (1995), 120–7.
is entirely different in the international arena, where the most mutually
173 M.Akehurst, The Hierarchy of antagonistic philosophies meet in head-on conflict.172
the Sources of International Law,
BYIL 47 (1974–5), 273 et seq.;
W.Karl, Treaties, Conflicts between,
EPIL 7 (1984), 467– 73;
W.Czaplinski/G.Danilenko, Conflicts
The hierarchy of the sources
of Norms in International Law, NYIL
21 (1990), 3–42.
174 See Harris CMIL, 25.
What happens if a rule derived from one source of international law conflicts
175 For a good discussion see with a rule derived from another source?173 Which prevails over the other?
Schachter, op. cit., 70–6, 335–42; Is there an order of application of the sources listed in Article 38 of the
Villiger, op. cit.
176 See text below, 57–8. Statute of the ICJ? In the drafting history of this provision the proposal was
177 See Chapter 9 below, 141–2. made that the sources listed should be considered by the Court ‘in the
178 See N.Kontou, The Termination
and Revision of Treaties in the Light undermentioned order’ (a-d). This proposal was not accepted and the view
of New Customary International was expressed that the Court may, for example, draw on general principles
Law, 1994.
before applying conventions and customs.174
The relationship between treaties and custom is particularly difficult.175
Clearly a treaty, when it first comes into force, overrides customary law as
between the parties to the treaty; one of the main reasons why states make
treaties is because they regard the relevant rules of customary law as
inadequate. Thus, two or more states can derogate from customary law by
concluding a treaty with different obligations, the only limit to their freedom
of law-making being rules of ius cogens, which will be discussed below.176
But treaties can come to an end through desuetude—a term used to
describe the situation in which the treaty is consistently ignored by one or
more parties, with the acquiescence of the other party or parties.177 Desuetude
often takes the form of the emergence of a new rule of customary law,
conflicting with the treaty.178
Thus, treaties and custom are of equal authority; the later in time prevails.
This conforms to the general maxim of lex posterior derogat priori (a later
law repeals an earlier law). However, in deciding possible conflicts between
treaties and custom, two other principles must be observed, namely lex
posterior generalis non derogat priori speciali (a later law, general in nature,
does not repeal an earlier law which is more special in nature) and lex
specialis derogat legi generali (a special law prevails over a general law).
Since the main function of general principles of law is to fill gaps in
treaty law and customary law, it would appear that general principles of
law are subordinate to treaties and custom (that is, treaties and custom
prevail over general principles of law in the event of conflict).
Judicial decisions and learned writings are described in Article
38(1)(d) as ‘subsidiary means for the determination of rules of law’,
THE HIERARCHY OF THE SOURCES 57
179 Bernhardt (1992), op. cit., 899.
which suggests that they are subordinate to the other three sources 180 See Chapter 2 above, 15–17, 32.
listed: treaties, custom and general principles of law. Judicial decisions 181 See Chapter 2 above, 30–2.
182 P.Weil, Towards Relative
usually carry more weight than learned writings, but there is no hard- Normativity in International Law?, AJIL
and-fast rule; much depends on the quality of the reasoning which the 77 (1983), 413–42, is critical of the
concept of ‘ius cogens’. See further J.A.
judge or writer employs. Frowein, Jus Cogens, EPIL 7 (1984),
It is doubtful whether equity is a source of international law at all; 327, at 328–9; L.Hannikainen,
even if it is, the existence of such doubts would appear to indicate that it Peremptory Norms (jus cogens) in
International Law: Historical
is, at most, a very low-ranking source. (However, when a tribunal is Development, Criteria, Present Status,
authorized to decide ex aequo et bono, the tribunal is allowed to substitute 1988; H.A.Strydom, Ius Cogens:
Peremptory Norm or Totalitarian
its own ideas of equity for any and every rule of international law.) Instrument?, SAYIL 14 (1988/9), 42– 58;
In sum, the different sources of international law are not arranged in A.D’Amato, It’s a Bird, It’s a Plane, It’s
a strict hierarchical order. Supplementing each other, in practice they are jus cogens!, Conn. JIL 6 (1990), 1– 6;
G.M.Danilenko, International jus cogens:
often applied side by side. However, if there is a clear conflict, treaties Issues of Law-Making, EJIL 2 (1991),
prevail over custom and custom prevails over general principles and the 42–65; J.Paust, The Reality of jus
subsidiary sources.179 cogens, Conn. JIL 7 (1991), 81–5;
S.Kadelbach, Zwingendes Völkerrecht,
1992; J.Kasto, Jus Cogens and
Humanitarian Law, 1994.
Ius cogens 183 Text in ILM 8 (1969), 679; AJIL 63
(1969), 875; Brownlie BDIL, 388. See
Some of the early writers on international law said that a treaty would Chapter 9 below, 140–1, 145.
be void if it was contrary to morality or to certain (unspecified) basic
principles of international law. The logical basis for this rule was that a
treaty could not override natural law. With the decline of the theory of
natural law,180 the rule was largely forgotten, although some writers
continued to pay lip-service to it.
Recently there has been a tendency to revive the rule, although it is
no longer based on natural law; the state most in favour of the rule was
the Soviet Union (which would never have supported the semi-religious
theory of natural law). Moreover, the rule is now said to limit the liberty
of states to create local custom, as well as their liberty to make treaties;
the rule thus acts as a check on the tendency of international law to
disintegrate into different regional systems.181 The technical name now
given to the basic principles of international law, which states are not
allowed to contract out of, is ‘peremptory norms of general international
law’, otherwise known as ius cogens.182
Article 53 of the Convention on the Law of Treaties, signed at Vienna
in 1969,183 provides as follows:
A treaty is void if, at the time of its conclusion, it conflicts with a

peremptory norm of general international law. For the purposes of
the present Convention, a peremptory norm of general international
law is a norm accepted and recognized by the international
community of States as a whole as a norm from which no derogation
is permitted and which can be modified only by a subsequent norm
of general international law having the same character.
What is said about treaties being void would also probably apply equally
to local custom. The reason why local custom is not mentioned is because
the purpose of the Convention was to codify the law of treaties only.
Although cautiously expressed to apply only ‘for the purposes of the
present Convention’, the definition of a ‘peremptory norm’ is probably
valid for all purposes. The definition is more skilful than appears at first
sight. A rule cannot become a peremptory norm unless it is ‘accepted and
184 A.Cassese, International Law in

a Divided World, 1986, 179. The
recognized [as such] by the international community of states as a whole’
recent study by Hannikainen, op. — a requirement which is too logical and reasonable to be challenged, but
cit., goes even further.
185 See R.Kühner, Torture, EPIL 8
which is well worth stating expressly, because there have already been cases
(1985), 510. See Chapter 14 below, of states trying to evade rules of international law which they found to be
216–17, 220.
186 Barcelona Traction case
inconvenient by arguing that those rules were contrary to some exotic
(Belgium v. Spain), ICJ Rep. 1970, examples of ius cogens; this danger should, with luck, be averted by requiring
3, paras. 33 and 34. See Chapter 14
below, 220.
such states to prove that the alleged rule of ius cogens has been ‘accepted
187 See Chapter 19 below, 309–11. and recognized [as such] by the international community of states as a whole’.
189 ILM 35 (1996), 828, para. 83
It must find acceptance and recognition by the international community at
stating that ‘[t]he question whether a large and cannot be imposed upon a significant minority of states. Thus, an
norm is part of the jus cogens
relates to the legal character of the
overwhelming majority of states is required, cutting across cultural and
norm.’ ideological differences.
190 Akehurst (1974–5), Hierarchy,
op. cit., 281–5.
At present very few rules pass this test. Many rules have been suggested
191 See Chapter 17 below, 254–6. as candidates. Some writers suggest that there is considerable agreement on
192 See Chapter 1 above, 4 and
the prohibition of the use of force, of genocide, slavery, of gross violations
of the right of people to self-determination, and of racial discrimination.184
Others would include the prohibition on torture.185 In an obscure obiter
dictum in the Barcelona Traction case in 1970, the ICJ referred to ‘basic
rights of the human person’, including the prohibition of slavery and racial
discrimination and the prohibition of aggression and genocide, which it
considered to be ‘the concern of all states’, without, however, expressly
recognizing the concept of ius cogens.186 But, apart from the ‘basic rights of
the human person’ mentioned in the Barcelona Traction case, the only one
which at present receives anything approaching general acceptance is the
rule against aggression.187 In its Advisory Opinion in the Legality of Nuclear
Weapons case, the ICJ did not find a need to address the question whether
universally recognized principles of international humanitarian law
(applicable in time of armed conflict188) are part of ius cogens as defined in
Article 53 of the Vienna Convention.189 It should also be noted that in the
preparatory work on Article 53 no agreement was possible on which
international norms belong to ius cogens. France even refused to accept the
Convention because of Article 53. The vagueness of ius cogens induced
Western and Latin-American states to insist on the procedural safeguard in
Article 66 lit. a of the same Convention, under which disputes on the
application of Article 53 are to be settled by the International Court of
Justice or an arbitral tribunal. State practice and international decisions
have indeed been cautious in accepting the relevance of the concept.
Although the question is controversial, the better view appears to be
that a rule of ius cogens can be derived from custom and possibly from
treaties, but probably not from other sources.190
Obligations erga omnes and ‘international crimes’

The problem of ius cogens is connected with the concept of erga omnes
obligations and the acceptance of the notion of ‘international crimes’ by the
International Law Commission in its project codifying state
responsibility.191 Under the international law of reprisals,192 the general
rule is that only the directly injured state is entitled to act against the violation of an
international obligation by another state. Obligations erga omnes are concerned
THE HIERARCHY OF THE SOURCES 59
193 See J.A.Frowein, Die

with the enforceability of norms of international law, the violation of
Verpflichtungen erga omnes im
which is deemed to be an offence not only against the state directly affected Völkerrecht und ihre Durchsetzung, in
by the breach, but also against all members of the international R. Bernhardt et al. (eds), Festschrift für
Hermann Mosler, 1983, 241 et seq.; P.
community.193
Malanczuk, Countermeasures and Self-
As noted above, the existence of norms which are ‘the concern of all Defence in the ILC’s Draft Articles on
states’ was recognized by the ICJ in the Barcelona Traction case in 1970. State Responsibility, in M.Spinedi/B.
But the decision also contains a remarkable reservation: ‘However, on Simma (eds), United Nations
the universal level, the instruments which embody human rights do not Codification of State Responsibility,
1987, 231 et seq.; A.J.J.de Hoogh, The
confer on States the capacity to protect the victims of infringements of Relationship between jus cogens,
such rights irrespective of their nationality.’194 Thus it offers little clarity Obligations erga omnes and
on the issue of possible reactions by third states to the violation of such International Crimes: Peremptory Norms
erga omnes obligations, the enforceability of which all states have a legal in Perspective, AJPIL 42 (1991), 183–
214; B.Simma, Does the UN Charter
interest in. Although the Court was confronted in a number of other
Provide an Adequate Legal Basis for
cases with erga omnes obligations, it has so far never addressed the legal Individual or Collective Responses to
consequences of the breach of such an obligation. This has been recently Violations of Obligations erga omnes?,
noted by Judge Weeramantry in his Dissenting Opinion in the East Timor in J.Delbrück (ed.), The Future of
case, in which for jurisdictional reasons the Court dismissed the claim International Law Enforcement: New
Scenarios—New Law?, 1993, 125 et
of Portugal against Australia for concluding an agreement with Indonesia seq.; C.Annacker, The Legal Regime of
affecting the rights of East Timor, but confirmed that the principle of Erga Omnes Obligations in International
self-determination was an obligation erga omnes: Law, AJPIL (1994), 131 et seq.; J.A.
Frowein, Reactions by Not Directly
Affected States to Breaches of Public
In the Court’s view, Portugal’s assertion that the right of peoples
International Law, RdC 248 (1994–IV),
to self-determination, as it evolved from the Charter and from 345–437; C.Annacker, Die
United Nations practice, has an erga omnes character, is Durchsetzung von erga omnes
irreproachable. The principle of self-determination of peoples Verpflichtungen vor dem Internationalen
has been recognized by the United Nations Charter and in the Gerichtshof, 1994; A.J.J.de Hoogh,
Obligations erga omnes and
jurisprudence of the Court…; it is one of the essential principles International Crimes: A Theoretical
of contemporary international law. However, the Court considers Inquiry into the Implementation and
that the erga omnes character of a norm and the rule of consent Enforcement of the International
to jurisdiction are two different things. Whatever the nature of Responsibility of States, 1996.
194 Barcelona Traction case, op. cit., at
the obligations invoked, the Court could not rule on the lawfulness 47, para. 91.
of the conduct of a State when its judgment would imply an 195 East Timor case (Portugal v.
evaluation of the lawfulness of the conduct of another State which Australia), judgment of 30 June 1995,
ICJ Rep. 1995, 90; ILM 34 (1995),
is not a party to the case. Where this is so, the Court cannot act, 1581–91, para. 29. See Chapters 18,
even if the right in question is a right erga omnes.195 286–7 and 19, 331–2 below.
196 See M.Spinedi, Les Crimes
internationaux de l’Etat dans les
With reference to the Barcelona Traction case, the International Law travaux Etats entrepris par les
Commission (ILC) in its draft on state responsibility has come up with a Nations Unies, 1984; R.Hofmann, Zur
problematic distinction concerning internationally wrongful acts that can Unterscheidung Verbrechen und
be committed by states: ‘international delicts’ and ‘international crimes’.196 Delikt im Bereich der
Staatenverantwortlichkeit, ZaöRV 45
Article 19 of the Draft Articles on State Responsibility197 stipulates:
(1985), 195 et seq.; M.Mohr, The
ILC’s Distinction Between
1 An act of a State which constitutes a breach of an international ‘International Crimes’ and
obligation is an internationally wrongful act, regardless of the ‘International Delicts’ and Its
subject matter of the obligation breached. Implications, in Spinedi/Simma (eds),
1987, op. cit., 115; Malanczuk (1987),
2 An internationally wrongful act which results from the breach
op. cit., at 230 et seq.; J.H.H.Weiler/
by a State of an international obligation so essential for the A. Cassese/M.Spinedi (eds),
protection of fundamental interests of the international International Crimes of States. A
community that its breach is recognized as a crime by that Critical Analysis of the ILC’s Draft
community as a whole constitutes an international crime. Article 19 on State Responsibility,
3 Subject to paragraph 2, and on the basis of the rules of 1989; G.Gilbert, The Criminal
Responsibility of States, ICLQ 39
international law in force, an international crime may result, (1990), 345 et seq; de Hoogh, op. cit.
inter alia, from: On the ILC see text below, 61.
197 Text in Brownlie BDIL, 426. See (a) a serious breach of an international obligation of essential
198 See ILCYb 1976, Vol. 2, part 2, importance for the maintenance of international peace
120. and security, such as that prohibiting aggression;
199 See the criticism by B.Simma,
Bilateralism and Community Interest
(b) a serious breach of an international obligation of essential
in the Law of State Responsibility, in importance for safeguarding the right of self-
Y Dinstein/M.Tabory (eds), determination of peoples, such as that prohibiting the
International Law at a Time of
Perplexity, 1989, 821. In the ILC, Art. establishment or maintenance by force of colonial
19 and its legal consequences have domination;
remained up to now highly (c) a serious breach on a widespread scale of an
controversial, see ILC 48th Session,
Provisional Summary Record of the international obligation of essential importance for
2452nd Meeting, UN Doc. A/ CN.4/ safeguarding the human being, such as those prohibiting
SR. 2452, 22 July 1996. See
slavery, genocide and apartheid;
200 See Chapter 20 below, 353–63. (d) a serious breach of an international obligation of essential
201 S.Rosenne, Codification of importance for the safeguarding and preservation of the
International Law, EPIL I (1992),
632–40; M.Schröder, Codification human environment, such as those prohibiting massive
and Progressive Development of pollution of the atmosphere or of the seas.
International Law within the UN, in
Wolfrum UNLPP I, 100–9; A.Pellet,
La formation du droit international 4 Any international wrongful act which is not an international crime
dans le cadre des Nations Unies,
EJIL 6 (1995), 401–25; H.Torrone, in accordance with paragraph 2 constitutes an international delict.
L’Influence des conventions de
codification sur la coutume en droit
international public, 1989.
According to the ILC, while an international crime always constitutes the
202 See Chapter 2 above, 21–2 and violation of an ergo, omnes obligation, the breach of an ergo, omnes
Chapter 20 below, 344. obligation does not necessarily imply an international crime. The concept
204 See Chapter 12 below, 173–4, of ‘international crimes’, therefore, is narrower than the notion of ius
176–82. cogens. 198 The precise implications of Article 19 in terms of legal
206 See Chapter 12 below, 173. consequences remain to be seen when the work of the Commission should
207 See Chapter 8 below, 123–7. reach a more definite stage.199 Only two remarks may be added here. First,
209 See Chapter 11 below, 161–2. the terminology is unfortunate because it tends to confuse the international
criminal responsibility of individuals200 with the criminal responsibility of
states, which, as such, does not exist in international law. Second, the
prohibition of the massive pollution of the environment has not been
accepted by state practice even as a ius cogens norm.
Codification of international law
Since the end of the nineteenth century there have been public and private
attempts to codify customary international law in order to clarify the existing
rules and to improve them.201 The Hague Conventions of 1899 and 1907
dealt with the laws of war and neutrality,202 the 1930 Codification
Conference in The Hague under the League of Nations addressed the law
of nationality,203 territorial waters,204 and state responsibility.205 But it was
largely unsuccessful; agreement was possible only on the law of nationality.
In recent years there has been a stronger tendency to codify customary law.
Four conventions on the law of the sea were signed at Geneva in 1958;206 a
convention on diplomatic relations and immunities207 was signed at Vienna
in 1961; a convention on consular relations and immunities was signed at
Vienna in 1963; conventions on the law of treaties were signed at Vienna in
1969 and 1986;208 and conventions on state succession were signed at Vienna
in 1978 and 1983. 209 A major enterprise in multilateral conference
diplomacy has been the 1982 Law of the Sea Convention which took ten
CODIFICATION OF INTERNATIONAL LAW 61

years of protracted negotiations to adopt and more than another ten 211 See Chapter 12 below, 178–80.
years to enter into force.210 212 See S.Goswami, Politics in Law
Making: A Study of the International Law
There are obvious advantages to be gained from codifying customary Commission of the UN, 1986; I. Sinclair,
law in a treaty. The rules become more precise and more accessible; and The International Law Commission,
1987; S.Vallat, International Law
new states are more willing to accept rules which they themselves have Commission, EPIL II (1995), 1208–16.
helped to draft. But, in view of the divergences between the practice of 213 See S.Sucharitkul, The Role of the
International Law Commission in the
different states, codification often means that a compromise is necessary, Decade of International Law, LJIL 3
and there is a limit to the number of compromises that states are willing (1990), 15–42; B.Graefrath, The
International Law Commission
to accept at any one time. Consequently, codification will succeed only Tomorrow: Improving Its Organization
if it proceeds slowly; acceleration produces the risk of failure, as happened and Methods of Work, AJIL 85 (1991),
595–612; R.Ago, Some New Thoughts
at the codification conference organized by the League of Nations in on the Codification of International Law,
1930, and the failure of a codification scheme may cast doubt on in E.G.Bello/B.A.Ajibola (eds), Essays in
Honour of Judge Taslim Elias, 1992,
customary rules which were previously well established. (This is what 36–61.
happened to the three-mile rule concerning the width of the territorial 214 See M.Brus, Third Party Dispute
Settlement in an interdependent World,
sea after the failure of the 1930 conference.211) 1995, 159–63.
The preparatory work for the Geneva and Vienna conventions was 215 See Chapter 20 below, 360–1.
carried out by the International Law Commission (ILC), established in
1947 by the United Nations.212 It is a body of thirty-four (originally
fifteen) international lawyers elected by the United Nations General
Assembly for a five-year term. The members of the ILC, who serve in
their individual capacity, are supposed to represent the world’s principal
legal systems. The ILC is entrusted not only with the codification of
international law, but also with its progressive development (that is, the
drafting of rules on topics where customary law is non-existent or
insufficiently developed); in practice the distinction between codification
and progressive development is often blurred. Special rapporteurs are
assigned to propose work programmes and draft articles chosen by the
Commission itself or referred to it by the General Assembly.
Sometimes the Commission seeks to codify the law, not by preparing a
draft convention, which may be later incorporated into a binding
multilateral agreement, but simply by summarizing the law in a report to
the General Assembly. Such reports are not binding in the same way as
treaties, but they do constitute valuable evidence of customary law; the
Commission’s members base their work on extensive research and on an
attempt to ascertain and reconcile the views of the member states of the
United Nations (for example, by circulating questionnaires and by inviting
states to comment on their draft reports—the same procedure is followed
during the preliminary work on draft conventions). The effectiveness of
the work of the ILC has more recently been called into question by some
of its own distinguished members,213 and with regard to the new topics
under consideration its working methods may require adjustment to meet
acceptance of drafts it produces by the majority of states.214 However, it is
notable that the ILC managed to respond to the request of the General
Assembly and complete its draft on the Statute for an International Criminal
Court within the short period of 1992 to 1994.215
Unofficial bodies have also tried their hand at codification. For instance,
Harvard Law School has produced a number of draft conventions;
these are not intended to be ratified by states, but are simply used as
216 See Chapter 2 above, 22.

a convenient means of restating the law. They derive their value from the
eminence of the professors who have helped to draw them up. Finally, the
private organizations of the Institute of International Law and of the
International Law Association, both founded in 1873, should be
mentioned.216

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1 Introduction

consists of rules and principles of general application dealing

Some recent textbooks refrain from any attempt to define international

11 See, for example, I.Brownlie,

34 See Chapter 19 below, 306ñ18.

40 Articles 169 and 170, EC Treaty.

It is no longer possible for a ëgeneralistí to cope with the volume

79 J.Schwietzke, Review of:

809–18; A.T.Y.Serra, Latin America,

The formation of European international law

12 See A.-M.de Zayas, Westphalia,

18 See S.Verosta, Aix-La-Chapelle,

As to your entreaty to send one of your nationals to be accredited

31 Hamsworth, History of the World,

The Western hemisphere

45 M.W.Janis (ed.), The Influence of

46 N.G.Onuf, Civitas Maxima: Wolff,

The theory of sovereignty

48 Wimbledon case, PCIJ, series A,

63 Grewe (1984), op. cit., at 578,

The peaceful settlement of disputes

Humanization of the law of warfare

73 The Institute is a private

87 Text in 225 CTS 188. See E.v.

The League of Nations

Other functions of the League

The Permanent Court of Justice

104 See A.-M.de Zayas, Spanish

Development after the Second World War

The prohibition of the use of force and collective security in

118 B.Broms, Suez Canal, EPIL 12

Attitudes of Third World states towards international law

136 See Chapter 11 below, 164ñ5.

Universality and the challenge to the unity of international law

146 See Chapter 3 below, 57ñ8.

158 S.P.Huntington, The Clash of

works, and also lists newly

The Statute of the International Court of Justice speaks of ‘international

Law-making treaties and ‘contract treaties’

21 See Chapter 9 below, 145–6.

26 See Chapter 9 below.

32 See H.Mosler, Repetorien der

43 Nussbaum, A Concise History of the

It is not to be expected that in the practice of States the application

In sum, major inconsistencies in the practice (that is, a large amount of

50 UK v. Norway, ICJ Rep. 1951,

This nuclear practice is not a practice of a lone and secondary

The beloved ‘real’ acts become less frequent because

Finally, state practice also includes omissions; many rules of international

66 North Sea Continental Shelf

The emergence, as lex lata, of a customary rule specifically

‘Instant’ customary law

Bernhardt also denies that under the traditional concepts of international

Universality and the consensual theory of international law

86 See text above, 41–3.

97 Fisheries case, op. cit., at 131.

103 On comparative legal studies see

117 See Chapters 2 above, 20 and

Finally, it should be pointed out that the issue of whether an international